General principles 

We should not ‘give in’ to a body in jurisdiction when we get pushback following draft decisions. We should properly consider their argument and then make a decision on what it means for our view, taking advice as appropriate. Similarly, we should not re-negotiate our decision on remedy unless the body in jurisdiction puts up an argument which shakes our view

As a general rule, we will only go back to a body in jurisdiction once if it does not accept recommendations at draft decision or draft report stage (if that is the first time it has seen it). However there may be circumstances where we will allow further correspondence (eg if a body in jurisdiction seeks counsel’s advice). In this case the investigator should speak to their casework manager to agree our approach and involve the Ombudsman at an early stage

If a case looks as if it will go to report, investigators should flag this possibility as early as possible (to both the body in jurisdiction and the Ombudsman). If we know the body in jurisdiction is unlikely to accept the proposed remedy at report we need to carefully manage the complainant’s expectations, given that our recommendations are not binding.

Throughout this process, we must be able to evidence we have properly considered the body in jurisdiction’s arguments and explain how these impact on our view at each stage. Equally, we must explain to the body in jurisdiction why their argument is or is not persuasive and give it an opportunity to respond at each stage

Where the body in jurisdiction responds to draft decision and does not agree remedy

If there is merit in the body in jurisdiction’s comments we should issue revised draft decision to all parties. However, if there is no merit, we should write to the body in jurisdiction explaining why its comments do not change our view. Depending on the circumstances we may amend draft decision to respond to comments and/or write a letter doing so.

If the investigator is unsure or the case is particularly complex or sensitive, they should discuss with their casework manager and seek further advice from a relevant forum, Ombudsman, or our legal advisors. 

If, following a further letter, the body in jurisdiction still does not agree, we should propose a draft report on the basis of non-compliance with proposed remedy. In part 3A cases, we will issue Statement with Recommendations

Where the body in jurisdiction agrees remedy at draft report stage 

If a body in jurisdiction agrees the recommendations following a draft report, the investigator should consider whether there is sufficient public interest in issuing a final report. The Ombudsman will decide whether to issue a final decision as a statement. In such cases, we should explain what has happened in the BinJ handling screen so we can identify any patterns in the body in jurisdiction’s “behaviour”.

If the Ombudsman decides there is still sufficient public interest in publishing our findings as a final report, we should acknowledge in the summary and body of the report that the body in jurisdiction accepted the findings and agreed the remedy. The report (and media coverage) should have a more positive tone.  

If the body in jurisdiction does not agree findings at draft report and there has been no earlier draft decision (Part III complaints only)

At the casework manager and investigator’s discretion, we may decide to write to the body in jurisdiction again to explain why its arguments do not change the recommended remedy. Then, if the body in jurisdiction still does not agree, move to final report.