The Ombudsman (Part ll)
Functions of the Ombudsman

By Stanford Conway
Editor-in-Chief-SKNVibes.com

Stanford Conway, Editor-in-Chief, SKNVibes

FUNCTIONS OF THE OMBUDSMAN

The Ombudsman is vested with the powers to investigate any administrative action of an authority for the purpose of deciding whether there is evidence of maladministration on the part of the authority; to make recommendations, pursuant to an investigation, to the authority concerning any administrative action that formed the subject of the investigation and, generally, about ways of improving its administrative practices and procedures; and to perform such other functions as may be conferred on him/her under the Ombudsman Act, 2006 of St. Christopher and Nevis.

Subject to this Act, the Ombudsman may investigate any administrative action take by or on behalf of an authority where a complaint is made to him/her by a person who claims to have been treated unjustly as a result of maladministration arising from or in connection with the administrative action taken by the authority; or on his/her own motion, notwithstanding that no complaint has been made to him/her, where he/she is satisfied that there are reasonable grounds to carry out an investigation in the public interest.

The Ombudsman may also conduct an investigation notwithstanding a provision in an enactment to the effect that:

• any decision, recommendation or act of an authority shall be final;
• no appeal shall lie in respect of any decision, recommendation or act of an authority; or
•  no proceeding of an authority shall be challenged, reviewed, quashed or called in question.
The Act also states that if a question arises about the jurisdiction of the Ombudsman to investigate, he/she or the complainant may apply to the Court for an order declaratory of the Ombudsman’s jurisdiction.

1.   Restrictions on Jurisdiction to Investigate

Where there is under any enactment a right of appeal or objection to a tribunal or a right to apply to a Court for a remedy in respect of administrative action taken by an authority, the Ombudsman shall not investigate such action:     ~~Adz:Right~~
• until after that right of appeal, objection or application has been exercised and determined; or
• until after the time for the exercise of that right of appeal, objection or application has expired.

Notwithstanding the above mentioned, the Ombudsman may investigate any administrative action of an authority in circumstances where the complainant has or had such right or remedy, if he/she is satisfied that in the particular circumstances it is not reasonable to expect the person to resort or to have restored to it.

However, this Act does not authorise the Ombudsman to undertake any investigation that relates to any action or matter specified in the First Schedule (areas mentioned before the sub-heading “Restriction on jurisdiction to investigate”. As a matter of fact, the Act states that “the Governor-General may, by order subject to affirmative resolution, amend the First Schedule”.

2.   Making a Complaint

A complaint to the Ombudsman about any administrative action of an authority:
• shall be made by the person aggrieved, but may be made on his/her behalf by a member of his/her family or other suitable person if the person by whom the complainant might have been made is unable to act for himself/herself;

• may be made orally, electronically or in writing; and
• shall be made within one year after the day the complainant first had notice of the administrative action.

Where a complaint is made to the Ombudsman, he/she shall record;
• the complainant’s name, address and telephone number;
• the subject matter of the complainant; and
• the date when the complaint was made.

Where a person who is detained in custody or otherwise confined in an institution informs the person in charge or another person performing duties in connection with his/her detention or confinement, that he/she wishes to make a complaint to the Ombudsman, the person so informed:
• shall take all steps necessary to facilitate the making of the complaint including the provision of an unsealed envelope; and

• without delay, shall send the complaint of the person in a sealed envelope to the Ombudsman.
A communication from the Ombudsman to a person confined or in custody, as described above, shall be forwarded to that person in a sealed envelope. The Ombudsman shall also write to the complainant acknowledging receipt of his/her complaint.
Further, where the Ombudsman investigates a complaint, he/she shall cause to be recorded in a register kept for the purpose:

• the name of the complainant;
• the subject-matter of the complaint and date; and

• on conclusion of the investigation, the Ombudsman’s decision respecting the complaint and any person may, on payment of such fees as may be prescribed, inspect any register kept pursuant to this section (Making a Complaint) during the hours and on the days of business of the Ombudsman.
Preliminary Inquiries

For the purpose of determining whether to undertake an investigation, the Ombudsman may conduct such preliminary inquiries as appropriate.

3.  Decision not to Investigate

The Ombudsman may decide not to investigate a complaint if he/she is satisfied that:
• the complainant knew of the administrative action complained against more than one year before the date when the Ombudsman received the complaint;

• the law or existing administrative procedure provides a remedy adequate in the circumstances for the complainant and, if the complainant has not availed himself/herself of the remedy, there is no reasonable justification for the failure to do so; or

• the complaint is frivolous, vexatious or not made in good faith.
The Ombudsman may also decide not to further investigate a complaint if:

• the complainant has abandoned the complaint by failing –
(a) advise the Ombudsman of a current address or a telephone number at which the Ombudsman can contact him/her; or

(b) respond after a reasonable number of attempts by the Ombudsman to contact him/her.
• The complainant withdraws the complaint; or
• The complaint is settled or is successfully dealt with by mediation.
Additionally, the Act states that where the Ombudsman decides not to investigate or further investigate a complaint, he/she shall notify the complainant and the authority of his/her decision and give reasons in writing for the decision.

4.  Mediation

The Ombudsman may decide to deal with a complaint by mediation under this section if, having regard to all the circumstances of the case, mediation is suitable in such circumstances. He/she may authorise any person appointed under section 24 (Staff of office of Ombudsman) as a mediator in any mediation.

Be it known also that participation in the mediation by the authority that is the subject of the investigation and the complainant is voluntary, and any party may withdraw at any time. Additionally, the mediator may decide to terminate the mediation at any time and, where he/she does so, he/she shall give reasons for the decision.

If an attempt to deal with a complaint by mediation under this section is unsuccessful:
• the complainant is to be treated under this Act as if the mediation had not taken place; and
• the mediator is excluded from participating as an investigating officer in any subsequent investigation of the complaint.

It is important to note that anything said or admitted during the mediation and any document prepared for the purposes of such mediation shall not be admissible in evidence:

• in any subsequent investigation of the complaint that is the subject of the investigation unless the person who said or admitted the thing, or to whom  the document related, consents to its admission; and
• against any person in any court or at any inquiry or in any other proceedings, and no evidence in respect of the mediation may be given against any person.

5.  Notice of intention to Investigate

If the Ombudsman decides to conduct an investigation, he/she shall, before commencing the investigation, give a senior officer of the authority that is the subject of the complaint and the complainant notice, in writing, in which notice the Ombudsman shall:

• inform the senior officer and the complainant of the Ombudsman’s intention to conduct the investigation;
• identify the administrative action that forms the subject of the investigation; and
• inform the senior officer and complainant in general terms of the Ombudsman’s powers in respect of an investigation.

In Part lll, SKNVibes will provides information on the “Process of Investigation”. Once again, this media house would like to thank the Legal Department for providing the necessary literature in fulfillment of the public’s request.