WPS5699


Policy Research Working Paper                  5699




       Redressing Grievances and Complaints
         Regarding Basic Service Delivery
                                 Varun Gauri




The World Bank
Development Research Group
Human Development and Public Services Team
June 2011
Policy Research Working Paper 5699


  Abstract
  Redress procedures are important for basic fairness. In                           procedures: administrative venues within government
  addition, they can help address principal-agent problems                          agencies, independent institutions outside government
  in the implementation of social policies and provide                              departments, and courts. On the demand side, the key
  information to policy makers regarding policy design.                             institutions are nongovernmental organizations/civil
  To function effectively, a system of redress requires                             society organizations and the news media, both of which
  a well-designed and inter-linked supply of redress                                require a receptive political and economic climate to
  procedures as well as, especially if rights consciousness                         function effectively. Overall, procedures for redressing
  is not well-developed in a society, a set of organizations                        grievances and complaints regarding basic service delivery
  that stimulate and aggregate demand for redress. On the                           are under-developed in many countries, and deserve
  supply side, this paper identifies three kinds of redress                         further analysis, piloting, and support.




  This paper is a product of the Human Development and Public Services Team, Development Research Group. It is part
  of a larger effort by the World Bank to provide open access to its research and make a contribution to development policy
  discussions around the world. Policy Research Working Papers are also posted on the Web at http://econ.worldbank.org.
  The author may be contacted at vgauri@worldbank.org.




         The Policy Research Working Paper Series disseminates the findings of work in progress to encourage the exchange of ideas about development
         issues. An objective of the series is to get the findings out quickly, even if the presentations are less than fully polished. The papers carry the
         names of the authors and should be cited accordingly. The findings, interpretations, and conclusions expressed in this paper are entirely those
         of the authors. They do not necessarily represent the views of the International Bank for Reconstruction and Development/World Bank and
         its affiliated organizations, or those of the Executive Directors of the World Bank or the governments they represent.


                                                       Produced by the Research Support Team
          Redressing Grievances and Complaints Regarding Basic Service Delivery

                                             Varun Gauri




JEL Codes: I10 (Health), I21 (Analysis of Education), I38 (Welfare and Poverty, Government
Policy), K23 (Regulated Industries and Administrative Law)

Keywords: Basic services, governance, administrative law





 Development Research Group, The World Bank. Sheila Myung provided valuable research assistance
for this paper; Ariel Fiszbein, Dena Ringold, and Chris Stolk gave very helpful comments; and Colin
Andrews, Edmundo Murrugurra, and Francisco Ochoa provided useful inputs and documentation. The
views expressed here are those of the author alone and do not necessarily represent the opinions of the
World Bank or its Executive Directors.
I.         Introduction

People make mistakes. Local officials sometimes deny social grants to individuals and families
who, under the terms of a program, are qualified to receive them. A teacher, in a pique of anger,
might hit a student even though national legislation forbids corporal punishment. Health workers
have forgotten appointments with patients who have walked long distances in poor conditions in
hope of obtaining treatment. When these mistakes occur, it is important, as a condition of basic
fairness and reciprocity, to facilitate the expression of complaints. Formal redress procedures in
the social sector consist of official venues in which individuals can present their understanding of
their entitlements, receive an attentive hearing, and be given an explanation or compensation.
And formal redress procedures are useful, of course, not only for addressing mistakes, but in
cases involving alleged corruption, negligence, or malfeasance.

Although there is a growing literature on institutional arrangements that amplify the voice of
service users through added information, participation, and co-production, the topic of redress
procedures has received less explicit attention.1 This paper provides a preliminary assessment of
the uses and limits of complaints procedures. (Although ―complaints‖ and ―grievance‖ redress
procedures have somewhat different connotations, the terms are used interchangeably in this
paper.) Section II summarizes some of the theoretical arguments involved and presents a simple
conceptual framework. Section III presents design principles – some of which are in conflict
with each other – for the development of redress procedures. Section IV examines three varieties
of redress procedures – those within government and departments, independent institutions
external to government agencies, and courts. Section V examines interventions on the demand
side that are important for the functioning of redress procedures, including NGOs and CSOs, and
the media. Section VI concludes.

Before going forward, a note on methods will be useful. Examples of redress procedures are
interspersed throughout the paper. This set of examples – by no means comprehensive – is based
on an online bibliographic review and conversations with development agency staff working in
the social sectors. This review found few descriptions, and almost no thematic reviews or
evaluations, of redress procedures in developing countries; as a result, OECD examples are
provided where relevant. In addition, most available accounts of redress procedures in
developing countries involved services outside the social sectors; and those, too, were included
where relevant. This paper, then, begins to fill a gap in the developing country literature on basic
service delivery.

II.        What are redress procedures, and why are they important?



1
    For a summary, see Chris Stolk, ―User Involvement and Service Delivery,‖ 2011.

                                                         2
This paper defines redress procedures as ex post reviews of service delivery transactions with
particular end users. Here, the term ―transaction‖ refers to omissions as well as actions, so that a
review of the reasons for the non-receipt of a service that should have been provided, according
to the end-user or her advocate, is also the potential subject of a redress procedure. This
definition allows one to distinguish redress or complaints procedures from neighboring
accountability-enhancing interventions. Budget monitoring and corruption reporting – whether
based on new information technologies, public expenditure tracking, or another instrument –
focus on the processes of service delivery governance rather than transactions with end users.
Citizen scorecards, such as those developed by the Public Affairs Centre in Bangalore,
sometimes ask end users to evaluate service transactions ex post, but their focus is aggregate
performance rather than particular transactions; and they frequently focus on service delivery
outcomes rather than the transactions themselves. Similarly, although social audits are ex post
reviews, they tend to focus on governance processes rather than individual transactions.
Information campaigns sometimes identify potential problems in specific transactions but do so
ex ante. All of these related accountability-enhancing procedures share certain features and
functions; in particular, they all have the potential to improve accountability relationships in the
social sectors both by empowering clients and by providing information to policymakers. But
redress procedures have a distinctive purpose, and these neighboring accountability-enhancing
are not substitutes for them.2

Unique among these accountability-enhancing interventions, redress procedures address basic
fairness for particular individuals. The word ―redress‖ itself indicates their focus on rectifying
something that has gone wrong. This means that redress procedures, if effective, are intrinsically
valuable, even without any effect on subsequent accountability relationships.3 Redress
procedures speak to basic fairness in two ways.

First, claims that make use of redress procedures typically seek some form of compensation for a
service delivery transaction that has harmed a particular user or group of users. This alleged harm
can take a variety of forms: the welfare of an end user might be unexpectedly lower as a result of
a service delivery transaction (iatrogenic illness stemming from medical error or negligence is a
paradigmatic case), the behavior of an end user might have resulted in humiliation or an affront
to the dignity of the end user (here, think of a mild but very public instance of corporal
punishment), or the end user might have been denied or received lower quality service delivery
than she was entitled to receive (e.g., an official or private actor might have incorrectly deemed a
client ineligible for a social grant). None of the other accountability-enhancing interventions
mentioned above can substitute for this objective of grievance redress procedures. If a social
audit or citizen scorecards, for instance, finds that a class of slum dwellers has unusually high

2
  On the relationship between social accountability and legal redress, see Vivek Maru, Allies Unknown: Social
Accountability and Legal Empowerment, Health and Human Rights 12 (1) 2010.
3
  But although they are intrinsically valuable, their value in any given instance may or may not, depending on the
gravity of the harms involved, exceed their costs.

                                                          3
rates of exclusion from a conditional social transfers program, and even discovers the social and
political drivers for this anomaly (such as corruption in the management of the municipality),
that information might benefit future program participants and enhance future design; but by
itself it does little to mitigate the harm done to a slum dweller who has been incorrectly denied a
grant.

Second, redress procedures support the rule of law, even a minimal understanding of which holds
that like cases should be treated alike.4 If a government, for instance, excludes people from social
programs for arbitrary or whimsical reasons, the unpredictability of government action may
make social coordination in related areas more difficult, and it may reduce the incentive for
individuals and families to invest in human capital.

The ways in which redress procedures support the rule of law is evident from their design.
Formal redress procedures typically attempt to standardize the procedures for the presentation,
reception, and response to complaints in order that routinized and nearly identical practices apply
to all individuals. Formal redress procedures typically aim to give reasons for an administrative
decision, and to assess services against a widely available standard. For example, the Department
of Human Resources, Labour and Employment in Newfoundland and Labrador (Canada) has a
formalized redress process that includes a first level of internal review, where administrative
decisions are reassessed against agency guidelines. Any decision communicated to the applicants
must contain the reasons for the decision, notice of the right to appeal and all other information
related to the appeal.5 If an appeal fails at that level, there is an external Income and
Employment Support Appeal Board, which must also give clear reasons, in writing, for its
decisions.6 In these ways, formal venues for redress tend to have a legal quality, even when they
are not codified in laws or regulations. In other words, administrative procedures that support
redress are the ―regulation of regulation‖: they oversee, in a rule-based way, the rules that
providers interpret when delivering (or denying) services.

To highlight their legal quality, it worthwhile to note that there exist redress pathways even in
the absence of legalized or formal channels. If an individual or family does not receive a service
that he or she wants, they can use some personal or familial resource – wealth and influence,
social connections and kin, a greased palm, a promise of political loyalty, a surrender of political
or civil rights, physical force, mobilization and street protests – to obtain what they believe they
deserve or want. These are quite common – and usually the most common – responses to
unsatisfactory service delivery. These are typically extra-legal pathways, however, and they
place social status and private resources, rather than citizenship and legalized entitlement, as the

4
 Michael J Trebilcock and Ronald J Daniels, Rule of Law Reform and Development: Charting the Fragile Path of
Progress, Edward Elgar 2008.
5
    http://www.hrle.gov.nl.ca/hrle/income-support/appealprocess.html.
6
    Id.

                                                          4
basis of a justified claim. They do not, moreover, necessarily require a principled explanation
from providers or administrators for the allegedly substandard service.7

In addition to the objective of basic fairness, redress procedures can enhance accountability
relationships. In this respect (but not in the dimension of achieving basic fairness), they are
substitutable with other accountability-enhancing reforms in basic service delivery, such as
information campaigns, score cards, social audits, and the like. To see how redress procedures
can enhance accountability, it is useful to distinguish two forms in which principals can monitor
the behavior of their agents: ―police controls‖ and ―fire alarms‖ monitoring.8 In the former
model, the principal conducts centralized, direct, and active monitoring of agents. This approach
involves direct observation and is potentially time-consuming. Audits and performance reviews
fit this category. In contrast, ―fire alarms‖ monitoring is less centralized, less active, and less
direct. It may also be less expensive for the principals because, to a significant extent,
monitoring costs are outsourced to the public. Here, the principal establishes rules and informal
practices under which the public and interested parties can bring instances of administrative
inappropriateness to the attention of courts and quasi-judicial bodies. The incentive for
individuals and others to participate in this kind of monitoring is that they can obtain
compensation for administrative violations. It is argued, moreover, that ―fire alarms‖ monitoring
might overcome some of the difficulties of ―police patrols‖ monitoring: the public is often in a
better position to observe administrative violations than the principals, and performance
standards against which service providers and administrators are judged are often written in an
ambiguous manner, making police patrols monitoring difficult.

The reason for the ambiguity in performance standards is that substantial discretion is
unavoidable in highly decentralized and difficult-to-specify practices such as classroom teaching
and clinical practice. For instance, a rule might require that an individual be a resident or native
of a particular community in order to qualify for a social grant or enroll in a university, but not
specify the years of residence necessary to be considered an ―indigene.‖ Or a rule might require
government health care providers to offer effective treatments for a condition, but not specify the
criteria for determining whether a course of treatment is indeed effective. 9 In other instances,
services in which there are constantly evolving technologies might hinder policy design, and
make the use of fire alarms monitoring beneficial. For instance, updating pharmaceutical

7
 For an interesting discussion of these issues, see Naomi Hossain, Rude Accountability: Informal Pressures on
Frontline Bureaucrats in Bangladesh, Development and Change 41(5): 907-928, 2010.
8
 McCubbins and Schwartz. 1984. Congressional oversight overlooked: Police patrols versus fire alarms. American
Journal of Political Science 28: 16-79.

9
 For a general account of this ambiguity, see Varun Gauri, School choice in Chile: two decades of educational
reform. Pittsburgh, Pa.: University of Pittsburgh Press; L Pritchett and M Woolcock. 2004. "Solutions when the
Solution is the Problem: Arraying the Disarray in Development." World Development 32 (2):191-212.


                                                        5
formularies is challenging because new technologies are always emerging. When individuals
demand medications that are not available in public clinics, but to which they believe extent
regulations entitle them, they provide information to policy makers regarding the extent to which
the drugs provided are adequate to local needs and preferences.10

From this abbreviated account, it is clear that redress procedures might function as ―fire alarms‖
for policy makers, allowing them to observe and effectively sanction the behavior of
administrators and service providers who deviate from expected performance standards; as well
as for politicians, who can use them to observe whether executive agency policy makers and
administrators are properly implementing national legislation. For this to work, however, (i) the
complaints procedures must be sufficiently utilized; (ii) they must be utilized for the kinds of
transactions and kinds of users that the principal aims to monitor; and (iii) standard management
processes need to incorporate information from the complaints process. These criteria might not
hold in any particular environment, as a report on complaints handling in the UK‘s NHS
indicates.11 As a result, it might be important to supplement redress procedures with other
accountability-enhancing approaches.

Depending on the institutional environment and the mode of redress procedures employed,
however, there are ways in which ―fire alarms‖ monitoring can affect policy even without a high
volume of complaints. Redress procedures are typically conceived as venues where individuals
or groups can present claims that providers and administrators have not complied with existing
policies – in contrast to venues, such as courts, in which claimants challenge the soundness,
legality, or constitutionality of those policies – but the distinction is difficult to maintain in
practice. The reason for this is that ―wholesale‖ redress can be more efficient than ―retail.‖12 In
other words, if an identifiable formal policy or informal practice leads to a larger number of
service recipients being improperly excluded denied a benefit, it will be less expensive for
administrators to change the policy or practice than to deal with the complaints serially. For
instance, in Guangxi, China, the People‘s Congress passed regulation imposing tolls on non-
residents, in violation of national laws. The easiest solution to this problem would have been for
a court to declare the regulations invalid, but because courts did not possess such powers in
China, toll-paying non-residents were required to take a retail approach, challenging each toll
individually.13

10
   Daniel Brinks and Varun Gauri, A New Policy Landscape: Legalizing Social and Economic Rights in the
Developing World: in Courting Social Justice, (Varun Gauri & Daniel M. Brinks eds., 2008)
11
   National Audit Office (UK), October 10, 2008, Feedback? Learning from complaints handling in health and social
care. Available at: http://www.nao.org.uk/publications/0708/learning_from_complaints.aspx
12
   TOM GINSBURG, The Judicialization of Administrative Governance: Causes, Consequences, and Limits, in
Administrative Law and Governance in Asia: Comparative Perspectives, (Tom Ginsburg & Albert H. Y. Chen eds.,
2009).
13
   Peerenboom, Randall P. 2009. "More law, less courts: Legalized governance, judicialization and dejudicialization
in China." In Administrative Law and Governance in Asia: Comparative Perspectives, ed. T. Ginsburg and A. H. Y.
Chen. London: Routledge. Page 185

                                                        6
In the basic definition above, redress procedures involve a ―review‖ of a specific transaction. The
word ―review‖ was selected to reflect that the fact that, despite their legal or proto-legal quality,
redress procedures can also involve hotlines, websites, letters, and other forms of complaint in
which standard legal modes, including standards of evidence and public hearings, may or may
not be utilized. In addition, although users typically demand some kind of compensation for the
wrong that has occurred, just being heard is, in hierarchical environments, itself a kind of
compensation.

More generally, what do individuals ask for when they ask for redress? In some cases, the claim
is obvious or simple – they want a benefit that administrators have denied them. But in others,
the demand is more complex. For corporal punishment, a student and his family might want an
apology. A beneficiary improperly denied a social grant might demand interest on top of the
grant amount. A victim of medical malpractice might ask for compensation, along with a
reprimand or other punishment of the malfeasant clinician. An NGO might seek, in addition to
redress for harmed members of the community on whose behalf it speaks, a change in policy so
that future beneficiaries in the community will not also be denied benefits improperly.

Because the remedies that beneficiaries seek are varied, and because public law allocates
different kinds of authority to different public officials on the basis of their bureaucratic position
and their functional specialization, redress procedures necessarily consist of a number of linked
redress systems. For example, an administrator might possess the authority to reverse a benefit
decision; but to pay interest on the denied benefit or sanction the provider or offer an apology,
she might have to forward the case to a higher level. This paper will employ a typology
consisting of three forms of inter-linked redress organizations: redress procedures in government
agencies, non-judicial entities external to line agencies, and courts.

Finally, legal scholars have long recognized that a pre-condition for the institutionalization of
legalized venues and judicial review is rights consciousness.14 In many settings, in developing
and developed countries alike, it is not enough that a redress venue exists. Low levels of literacy
and political/social marginalization mean that many individuals, including ethnic minorities, will
not take advantage of redress procedures even if they are available. It is important, then, to pay
attention not only to the supply of redress procedures but to the demand for them, and to support
organizations that stimulate and aggregate demand for redress. This paper will consider two such
demand-side organizations: the media and NGOs. Measures to stimulate demand can include
support (or a supportive legal environment) for NGOs/CSOs, granting access to independent
media, and publicizing extant redress procedures.

14
  See, for instance, Randall P. Peerenboom, China‘s Long March Toward Rule of Law. Cambridge University
Press, 2002. ―But the biggest constraints on effective judicial review are the institutional or systemic obstacles
discussed previously, including the low level of rights consciousness and unwillingness of many citizens to bring
suit, a culture of deference to authority, and a weak judiciary.‖ P. 421

                                                          7
III.    Basic design principles

Redress procedures can take a variety of forms. The structure of these procedures varies, and
tends to be related to local history and context. The same is true of the linkages – the ―referral
networks‖ – among these procedures. How they are designed, and how they should be designed,
depend significantly on historical factors, such as the authority of judges and the nature of the
legal tradition (e.g. common law or civil law), the statutory authority of bureaucrats, and the
extent of specialization in the service delivery agencies. It is important to build on the local legal
and political culture, rather than importing an institutional form alien to the local landscape. Still,
when designing a system of redress procedures, the following design principles are important to
bear in mind.

Demand for redress. Effective redress procedures require i) an adequate venue in which
complaints can be received and ii) sufficient demand. Weak or non-credible venues will
undermine demand because service users will not bother to lodge complaints. In addition, many
service users, particularly the most marginalized, will not believe they are entitled to complain,
and as a result the sample of complaints received will bias ―fire alarms‖ monitoring.
Consequently, active measures to promote demand for redress will be necessary, along with
efforts to lower the costs of accessing redress procedures. Lowering the cost of access can
include lowering the economic, social, procedural, and geographic barriers that make access
difficult, particularly for marginalized individuals and groups.15 If policymakers are concerned
with the quality of service delivery for a specific subset of the population, the procedures might
be designed to make access costs particularly low (or subsidized) for that group.

Cost and benefit. The more accessible that redress procedures are, the more likely that the
benefits associated with them will be realized, including the monitoring of agents and the
increase in information to policy makers. On the other hand, excessive time spent on redress
procedures (on the part of users as well as providers and policy makers) can reduce the efficiency
of service delivery. Balancing accessibility of redress against its potential to reduce efficiency is
a design challenge.

As a general principle, it will be less costly to resolve complaints at the point of service delivery,
where information about service practices is clearest and where transaction costs are lowest.
Typically, access to redress procedures tends to become more costly as one moves from

15
  For instance, a World Vision cash and food transfers project used a mobile community help desk, staffed with
full-time officers, to collect and respond to complaints. A review found that 45% of complaints were related to
demands to understand the reasons for exclusion from the benefits, 29% were related to registration, and 26% to
corruption. See Stephen Devereux and Michael Mhlanga. 2008. Cash Transfers in Lesotho: An Evaluation of World
Vision‘s Cash and Food Transfers Pilot Project. Brighton, UK, and Maseru, Lesotho: Centre for Social Protection,
Institute for Development Studies, and Mhlanga Consulting Services.

                                                       8
government agencies to external non-court entities and then to courts, and as one extends quasi-
legal attributes to the resolution processes within frontline ministries. (But redress procedures
sponsored by NGOs might be less costly to access than those provided by government agencies.)
Still, for the system to function effectively, and for the realization of some of the expected
benefits from redress – particularly basic fairness – the possibility of independent review is
important. As a result, it is important not to set the cost of accessing independent review too
high. Clear and accessible pathways for referring unresolved disputes upward should be
available and understandable.

There are no easily available figures on the cost of putting redress procedures in place, nor data
on how big a factor cost plays in setting policy around redress procedures. However, the cost-
benefit analysis clearly becomes less important as more important rights come into play. A
commentator on administrative law in Canada states:

           It is difficult to discern any cost-benefit criteria used consistently by legislatures
           to determine when a right of appeal to a court is an appropriate form of redress or,
           if granted, how broad the right should be. However, there seems to be an
           emerging pattern that, in the absence of some strong reason to the contrary, there
           should be a statutory right of appeal to a court from independent administrative
           agencies with the power to make decisions restricting the exercise of an
           individual’s common law rights (human rights tribunals, land use planning appeal
           tribunals, vocational and professional licensing, for example) or refusing some
           significant social security benefit‖ (emphasis added). . . . The one main exception
           is in the area of labour relations and employment, where legislative policy has
           generally steered towards avoiding court intervention. 16

Independent review. The possibility of independent review gives service users greater
confidence in the objectivity and neutrality of the dispute resolution process. The institutional
attributes of independent agencies typically include funding sources that are somewhat
autonomous of political powers and some degree of insulation from politically, economically,
and socially powerful individuals and groups. Courts typically serve the function of providing
independent review of administrative law decisions, including redress procedures. (Of course, in
many developing country settings, courts are independent of neither, in a de facto sense,
executive nor social power). But it may be useful to establish independent arbitration or review
at a stage even prior to courts because access to courts is typically too costly for many service
users.

Absent the expectation of a credible and effective response, service users may avoid grievance
procedures altogether. In the UK, for example, the most recent report on customer satisfaction at

16
     David J. Mullen, Administrative Law: cases, text and materials, 2003, 23.

                                                           9
The Pension Service (TPS), one of the sub-agencies of the Department for Work and Pensions
(DWP), found that only 6% of all contacted customers had made a complaint to TPS.17
Customers who had never complained to TPS were asked if they had ever considered
complaining. Seven percent of contacted customers had considered complaining but had never
done so.18 The report included a table of the reasons customers did not complain, with the
majority of customers claiming that they ―thought nothing would happen as a result of the
complaint.‖19 While TPS and the DWP as a whole have made efforts to address customer
satisfaction and be responsive to their needs, the internal redress procedure currently in place
suffers from a lack of legitimacy. A higher percentage of customers who had complaints would
probably put in formal complaints if they believed that an independent party would look at them
objectively.

Ethiopia‘s Productive Safety Net Program empowers a local appeals committee, which is
independent from the targeting and graduation structure of the program, to hear complaints and
grievances. The program uses a standardized client card that lists a charter of rights and
responsibilities, among which are enumerated the right to appeal a decision and the responsibility
to report abuses. A study found that, of households that described the targeting process as unfair,
23% had lodged a complaint.20

Legality. Redress procedures vary in the extent to which they exhibit legal attributes. These
include standards for the kinds of evidence to be presented (including third party verification of
the accuracy of the claims and the administrative responses to them), the public availability of
both the complaints petitions themselves and the reasoning behind the dispute resolver‘s
response, and the incorporation of other trial-like characteristics (such as adversary legalism)
into the procedures to be used.21 Obviously, courts are more likely to exhibit these legal
attributes than other redress procedures; but if venues outside of courts are empowered to handle
significant harms, such as sexual assault on the part of a medical provider or a teacher, or a
significant loss of earnings from the denial of benefits, they will likely need safeguards to ensure
the quality of the adjudication process, even if those safeguards are not identical to the legal
ideal. In instances such as sexual assault, redress procedures will need credible guarantees of
anonymity for the complainants. On the other hand, making complaints public and accessible to
NGOs, journalists, and others, wherever possible, will multiply the ―fire alarms‖ monitoring
power of redress procedures. Of course, as legal safeguards increase, so do the costs of providing
the redress procedures.




17
   DWP, 2007, The Pension Service Customer Survey 2007, Research Report no. 532, 140.
18
   Id., at 143.
19
   Id., at 144, Table 8.2: ―Why did not complain after considering.‖
20
   Will Wiseman, Designing and Implementing a Rural Safety Net in a Low Income Country: Lessons Learned from
Ethiopia‘s Productive Safety Net program 2005-2009. World Bank.
21
   See Robert A. Kagan, Adversarial Legalism: The American Way of Law. Harvard University Press 2003.

                                                    10
Political economy concerns. One can sketch a system on paper that is fully consistent with
optimal design principles, but the realities of political and economic power often hinder the
implementation and operation of such a system. What are the political conditions under which
well-designed redress procedures have emerged? There appears to be no general study of this in
the literature. But a casual review suggests that effective redress procedures seem to have
emerged under broadly the same conditions that have facilitated the emergence of autonomous
and effective courts: sufficient rights consciousness in the population, and the existence of a
functioning democracy with relatively competitive electoral systems. That is not to say that
grievance procedures will not appear, or are not useful, absent those conditions. In fact, courts
play useful roles in many authoritarian states. But courts are most powerful when the two
conditions hold. It is likely that the same is true of redress procedures.

Recent data from a representative survey in thirty-six countries, in respondents were asked if
they actually complained about services, supports this. For both health care and education, the
highest frequencies were found in Sweden, Germany, Italy, and Britain, countries where basic
service delivery is relatively good, whereas lower frequencies of complaints were found in
countries such as Georgia, Tajikistan, and Kyrgyzstan. In other words, complaint frequencies
appear to be more closely related to the credibility of redress procedures than to the quality of the
services themselves.22




22
     Life in Transition Survey (LiTS), 2010

                                                 11
IV.     The supply side

Redress procedures within government agencies

It is possible for line agencies to establish a variety of venues for the receipt of complaints and
grievances, including dedicated mail boxes, email addresses, text messaging systems, telephone
hotlines, interactive websites, office windows, and complaints handling officers. These can be
established inside service provision points, such as hospitals or schools, or in separate offices
within the ministries. They can be specialized complaints receipt venues, focusing on a particular
kind of problem, or they can be open to any kind of comment or complaint. 23

One form of specialized complaints venue is the project-related complaints handling procedure,
which may focus exclusively on donor investments. A stocktaking exercise of World Bank
human development projects approved from in fiscal years 2008-2010 found fifteen projects that
supported or attempted to integrate grievance/complaints procedures in the social protection
sector (whether in the Bank projects or in the broader government programs), two such projects
in the education sector, and just one in health.24 Not all of these references to grievance or

23
   ―Designing Effective Complaints Handling Procedures,‖ presentation, David Post and Sanjay Aggarwal, World
Bank, April 21, 2010.
24
   ―Agency ESW Stocktaking Exercise,‖ World Bank, Office of the Chief Economist for Human Development,
January 2011.

                                                      12
complaint handling procedures in these projects and programs were designed as general reviews
of transactions with end users. For instance, the Kyrgyz Republic Health and Social Protection
Project focuses on serious allegations on the part of auditors, and public complaints regarding the
imposition of informal fees, rather than on the variety of complaints end users might have. A
concern regarding complaints handling procedures that focus primarily on donor-financed
operations, to the exclusion of more general complaints, is that they may weaken the complaints
handling capacity of the government more generally, either by drawing staff and talent away, or
undermining client confidence in the government‘s processes.

A noteworthy grievance redress procedure is that incorporated into the newly expanded
Philippines‘ Conditional Cash Transfer Program, whose focus is grievances expressed regarding
the broader government program, rather than within a Bank-supported project per se. Grievances
are entered into a publicly accessible database that tracks the nature, origin, location, and status
of complaints, including targeting errors, payment irregularities, fraud, and corruption. The
database takes in complaints from text, various websites, and a hotline. In the first quarter of
2010, some 13,500 complaints were received. A survey of one region found that 13% of the
population had complaints about the program.25 This is not surprising given the rapid expansion
of the program, which went from 376,000 households in 2008 and expanded further at the
beginning of 2009 to cover one million households beneficiaries , or approximately 20 percent of
the poor. The complaints system provides an important information source for course corrections
as the program expands.

As the section on design principles, above, indicated, redress procedures within line agencies
should address issues concerning confidentiality, transparency of the redress process,
accessibility, speed and responsiveness, and authority. The publication of regular reports on the
number and nature of appeals is a useful way to monitor the transparency of the redress process.
For instance, Manitoba‘s Family Services and Consumer Affairs department, for example, puts
out Annual Reports on the Social Services Appeal Board, which includes information such as
Board Membership, Financial Information, Appeal Activity, Requests for Reconsideration, and
Summary of Advisory Activities. For the 2008-2009 fiscal year, there were 540 appeals, with the
vast majority of them in the area of income assistance.26 Most of the appeals were also made on
the basis of insufficient assistance.27 The publications also provide detailed information on the
number of requests for reconsideration, including their disposition and the program breakdown.

The last concern mentioned above, authority, refers to the kinds of redress available in line
ministry redress procedures. Generally speaking, it will probably most effective – both for
engendering client confidence and for efficiency of resolution – to delegate as much authority to
the officials that staff line agency redress procedures as is consistent with public law, and as

25
   World Bank, Manila Office, Human and Development and Governance Units. Philippines: Strengthening the
Governance Dimension of the Philippines‘ Conditional Cash Transfer Program, December 2010.
26
   Annual Report 2008-09, 12.
27
   15.

                                                     13
political economy concerns would recommend. In other words, some of the most effective
redress procedures grant significant discretion to officials to award money, impose penalties,
offer apologies, and even change certain policies. This is illustrated in the examples below.

In the UK, the Department for Work and Pensions (DWP) in the UK has a clear process for
dealing with complaints. The first step is to send a complaint to the manager of the office that
dealt with the claim. Then they have separate complaints departments for each of their sub-
agencies: The Pension Service, Job Centre Plus, Child Support Agency, Debt Management
Organization, and Disability and Careers Service.28 Their account of the redress process makes
clear that they both have the authority to correct wrongful decisions, and are open to third-party
independent review: ―If you think our decision is wrong, you can ask us to explain it. If you still
think it is wrong after we have explained, we will look at it again. For some decisions, you may
also be able to appeal to an independent tribunal who can change the decision if they agree that it
is wrong.‖29

Similarly, the National Health Service describes a formal complaint procedure, detailed on its
website. The procedure starts with contacting the patient‘s hospital or primary care trust, also
known as local resolution.30 In order to help facilitate the complaint procedure, there are two
available services. One is the Patient Advice and Liaison Service (PALS), local to each hospital,
which offers confidential advice, support and information on health-related matters to patients,
their families and their care givers.31 The second available service is the Independent Complaints
and Advocacy Service (ICAS), which is a national service that handles complaints about NHS
care or treatment.32 The local ICAS office can be found through the hospital manager or by
calling a regional office number available on the NHS website.33

In Canada, appeals regarding the decisions of the Department of Human Resources, Labour and
Employment lays are described on their website, and include three main steps34:

     1) Consult the Client Services Officer Supervisor or Manager
     2) The First Formal Level of Appeal – the Internal Review: ―The Internal Review will
        consist of an examination of written documentation, but may include direct contact with
        you via telephone.‖
     3) The Second Formal Level of Appeal – the Income and Employment Support Appeal Board: ―If
        you are not satisfied with the decision of the Internal Review you can appeal to the Income and
        Employment Support Appeal Board. To do this you must forward an Application for Appeal to
        the Executive Secretary of the Board.‖


28
   http://www.dwp.gov.uk/contact-us/complaints-and-appeals/
29
   Id.
30
   NHS, ―How to Complain,‖ available at:
http://www.nhs.uk/choiceintheNHS/Rightsandpledges/complaints/Pages/NHScomplaints.aspx
31
   The local PALS office can be found by searching at http://www.pals.nhs.uk/officemapsearch.aspx.
32
   Id
33
   Id.
34
   http://www.hrle.gov.nl.ca/hrle/income-support/appealprocess.html

                                                       14
In France, complaints about charges, reimbursements or access to health (Couverture Maladie
Universelle) should first go to the local Caisse, normally the Caisse Primaire d’Assurance
Maladie (CPAM), or the Régime Social des Indépendants (RSI) for those in business.35
Complaints against refusal of affiliation or reimbursements should be appealed to the
Commission de Recours Amiable (CRA). Appeals must be made within 2 months of formal
notification of the decision contested. The CRA should make a decision within one month of
receipt of all the documents.36

Some of the most well-specified redress procedures within line agencies exist in developed
countries, but these are feasible in low-income countries as well. The design of Kenya‘s Hunger
Safety Net Program (HSNP) emphasizes that ―grievance and redress procedures‖ are necessary
to the social protection and rights program and identifies three levels of redress procedures:
community, district, and national. At the community level, there are to be grievance committees
responsible for investigating and seeking redress. At the district level, the HSNP is designed to
have a grievance front office to receive complaints. Those complaints that cannot be addressed
by the district office are forwarded to the national grievances coordinator.37

Grievances are based on a ―National Charter of Rights‖ that is (in theory) developed by HSNP in
conjunction with the communities and disseminated at the community level.38 There are also to
be rights committees at the community levels who are to oversee overall developments in the
community and ensure that grievance and redress procedures are strictly followed by the
communities, leaders, and implementing partners. The rights component begins with community
education and mobilization. To date, according to the website, HSNP has created a charter of
rights in illustrated form to disseminate among different ethnic groups. The HSNP is setting up a
Management Information System to network and share information with all its partners. All
complaints received are to be logged into the Management Information System and reviewed
regularly by the National Programme Coordinator.39

A number of urban areas in South Asia are developing complaints and redress procedures. In
Gujarat‘s State Employees State Insurance schemes (ESISs), a Local Committees and Regional
Board representing employers, employees and scheme administrators have been created to
address grievances. 40 And since April 1999, an independent cell exists to deal with public
grievances at the regional level. Recently, a website also gives the address and contact




35
   ―French Health System – Complaints, ‖ available at: http://www.french-property.com/guides/france/public-
services/health/complaints/
36
   Id.
37
   HSNP, About Us, http://www.hsnp.or.ke/HSNP%20Web%20index_files/Page382.htm.
38
   Id.
39
   Id.
40
   http://esicvadodara.org/index_grievan.html.

                                                       15
information of the Public Grievance/Complaint Officer and provides an online form that could
be filled out to submit complaints or grievances directly.41

Similarly, India‘s Employees Provident Fund Organization has recently set up a new Grievance
Management Portal through its website.42 The portal allows subscribers to register a grievance,
send a reminder or clarification, view status or change password. The Grievance Registration
Form is detailed, requiring (potentially compromising) personal information, information about
the officer to which the grievance pertains, and allows a description of the grievance up to 5000
characters.43 The municipality of Rajkot, in Gujarat, also has an SMS-based grievance redressal
system for civic problems.44 Pakistan‘s Benazir Income Support Programme similarly has an
online grievance redressal system.45

The Hyderabad Metropolitan Water and Sewage Board, in the state of Andhra Pradesh, India,
simplified and standardized the complaints process starting in the mid 1990s. This occurred in
the context of a variety of service innovations that included a citizen‘s charter, a single window
cell for services, management reforms, higher levels of publicity, and a focus on customer care.
This package of reforms led to improvements in customer perceptions, and a reduction in wait
times. Improved perceptions were accompanied by an increase in the number of registered
complaints, as well as an improvement in the efficiency of complaints redress. 46

In April, 2003, in Mumbai, the Praja Foundation and the Municipal Corporation of Greater
Mumbai jointly initiated the Online Complaint Management System, which streamlines
complaints on urban public services into an online database for tracking performance. 47 This
initiative lasted until 2007, when the municipality launched its own system, which includes ten
phone lines with 24 hour coverage, an email address, a website portal, a fax number, courier
paper complaints, and verbal complaint registries.48

A final example involves Lok Satta, a civil society group, that worked with municipal authorities
in Andhra Pradesh to establish citizens charters, complaints procedures, and an agreed upon fine



41
   http://esicvadodara.org/index_com.html
42
   http://www.epfindia.gov.in/Index.htm
43
   http://epfigms.gov.in/grievanceRegnFrm.aspx?csession=u1jrSg1SYwz&#
44
   For a description, see Yamini Aiyar, Bala Posani, Abhijit Patnaik and Manakini Devasher, Institutionalizing
Social Accountability: Considerations for Policy, The Accountability Initiative, 2009:
http://www.accountabilityindia.in/sites/default/files/working-paper/36_1255255017.pdf
45
   http://58.65.177.220/grievance/Grievance/login.aspx
46
   Jonathan Caseley, Blocked drains and open minds: multiple accountability relationships and improved service
delivery performance in an Indian city. IDS Working Paper 211. December 2003:
http://www2.ids.ac.uk/gdr/cfs/pdfs/wp211.pdf
47
   http://www.praja.org/our-project-online-complaint-management-system.php
48
   A description can be found here:
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN012838.pdf And the complaints portal
itself is here:
http://www.mcgm.gov.in/irj/portal/anonymous?NavigationTarget=navurl://1541a2917b15d1b4a1a0713c12eb56ff#

                                                      16
of 50 Indian rupees per day for a delay in the delivery of public services. A qualitative evaluation
of this initiative has been favorable.49

Independent redress institutions

External non-judicial redress procedures include tribunals, ombudsmen, public inquiries, a
variety of sector-specific entities, such as labor relations boards, and civil society organizations.
It is difficult to generalize about this heterogeneous collection of actors, but a few comments are
possible. First, these entities typically exist outside the formal bureaucratic apparatus and
sometimes possess little or no public authority to compel parties to accept their findings. Their
judgments are often advisory only. Second, their authority typically rests somewhere between the
line agency power to examine internal compliance with extant rules and the judicial function of
reviewing the adequacy of extant rules, regulations, and even, in the case of constitutional courts,
laws. Third, these are most useful when the incoming pathways from line agencies to them, as
well as the outgoing pathways from them to courts, are well-publicized and widely known.

In the UK, there are both public sector and ―private‖ sector ombudsmen. Public sector
ombudsmen investigate complaints about local councils, government departments and the NHS.
Private sector ombudsmen investigate complaints about a range of businesses and industries.
However, many private sector ombudsmen have a ―statutory basis, and are approved by the
regulator for their sector, or by the relevant government department.‖50 Public sector ombudsmen
can usually only review how a decision was made, looking for cases of maladministration and
suffering as a result of the maladministration.51 In contrast, private sector ombudsmen can
―generally consider whether a decision taken by an organization was fair and reasonable, taking
into account standards of good practice within the industry or profession.‖52

Ombudsmen can recommend or order the following remedies: explanation, apology, change in
practice, out-of-pocket expenses, compensation. They can also ask an organization or
government department to review other similar complaints. However, recommendations are not
binding. Awards made by private ombudsmen are binding through membership of the
ombudsman scheme, meaning that a company could lose its membership if it does not comply.
One cannot appeal an ombudsman‘s decision, but they have their own complaints process and
some have independent reviewers who will investigate complaints about their procedures.



49
   Public Affairs Foundation Bangalore, India, Karen Sirker, and Sladjana Cosic Empowering the Marginalized:
Case Studies of Social Accountability Initiatives in Asia. World Bank Institute Working Paper. 2007.
http://www.sasanet.org/curriculum_final/downlaods/PM/Working%20Papers%20&%20Case%20Studies/01%20Em
powering%20The%20Marginalized%20-
%20Case%20Studies%20of%20Social%20Accountability%20in%20Asia.pdf
50
   http://www.adrnow.org.uk/go/SubSection_15.html
51
   http://www.adrnow.org.uk/go/SubSection_15.html. However, the Health Service Ombudsman can investigate
complaints about poor treatment or service.
52
   http://www.adrnow.org.uk/go/SubSection_15.html.

                                                    17
The Office of the Independent Adjudicator (OIA), in the UK, is an independent body that is set
up to review student complaints against Higher Education Institutions in England and Wales.53
Any complaints or appeals procedures of the higher education institution must be exhausted
before bringing a complaint to the OIA. An application must be made within 3 months of the
date of the completion of any complaints or appeals procedures at the institution. The OIA has a
comprehensive complaints process but it only applies to higher education institutions.

Challenges to income support and related social decisions in Canada may appeal to a third level
of review, which, as described above, consists of the Income and Employment Support Appeal
Board. For health insurance appeals in France, there is also an ombudsman system through an
official and ‗independent‘ Conciliateur who can be contacted through the local Caisse or RSI.
The ombudsman‘s decisions are non-binding but are generally respected.54 There is also a main
independent ombudsman, the Médiateur de la République. The Médiateur helps settle disputes
with civil service departments but his jurisdiction is much broader than health or social welfare.55

In France there is a special tribunal that is called the Tribunal des affaires de sécurité sociale
(TASS). The TASS judges conflicts between social security agencies and the insured and
contributors and between social security and health professionals. Applications may be made to
TASS if the insured is not satisfied with the decision of the CRA or if the CRA did not make a
decision within a month of receipt of all necessary documents (an implied rejection).56

Brazil‘s Programa Bolsa Família is explicitly subject to external monitoring by several
organizations, including the Tribunal Contas da União, the Controladoria-Geral da União, the
Minsitério Público, and publicly constituted councils at the municipal level. While the first two
organizations focus on transparency and accountability more generally, the last two have the
attributes of external redress processes in which individual transactions are reviewed. Data on
complaints with the program do not appear to be aggregated into easily available and
standardized datasets. A survey of 5,604 families in 2006 found that 9% should have been paid
but were not (or were paid improper amounts), but it is not clear if these were uncovered on the
basis of regular complaints or on the basis of the administrative review and the survey. Overall,
the focus of the agencies that monitor irregularities in the PBF appears to be on families
improperly included in the program, rather than those improperly excluded.57



53
   The Office of the Independent Adjudicator for Higher Education, homepage, available at:
http://www.oiahe.org.uk/.
54
   ―French Health System – Complaints,‖ available at: http://www.french-property.com/guides/france/public-
services/health/complaints/.
55
   http://www.mediateur-republique.fr/en-20-citoyen-Contact
56
   ―Tribunal des affaires de securite sociale,‖ available at: http://www.legislation.cnav.fr/doc/cont/cxgen/tass/BNL-
EX_CONT_CXGEN_TASS.htm
57
   Controle e transparencia na gestao do Programa Bolsa Família, 1 Mostra Nacional de Estudos sobre o Programa
Bolsia Familia.

                                                         18
Civil society organizations can also play an important role in the development of complaints
procedures. The Chilean Initiative Reclamos is a private initiative whose original aim was to
promote dialogue between consumers and private companies, and to facilitate the resolution of
complaints. The web portal is enormously popular, receiving 800,000 unique visitors per month
in a country with population of about 17 million; but the focus has moved from facilitating
consumer-producer dialogue to cataloging and highlighting complaints that are then picked up by
journalists and used by other consumers. Users also use the portal to complain about basic
service delivery on the part of government agencies and departments.58

Similarly, Kiirti, created by a former Amazon employee in India, is a broadly applicable
technological platform for monitoring complaints; but its most widespread use has been for the
lodging of complaints against auto rickshaw drivers in Bangalore, India. The major impediment
to its use appears to be the lack of sufficient staff on the part of the Regional Transportation
Office to follow up on the complaints. As the Commissioner colorfully put it, ―We are still
experimenting with e-Governance, which I personally have been working on since 1991, and we
need to realize that it is just a topping, not the pizza itself.‖ 59

These last two examples make clear that access to complaints procedures can be dominated by
middle class concerns and priorities. The section on Demand, below, will highlight this problem
and describe approaches that might ameliorate these concerns.

Courts

The extent to which courts hear and redress the failures of line agencies and providers to comply
with their statutory and contractual obligations, versus the extent to which courts review the
regulations that govern service delivery in light of the law and the law in light of the constitution,
depends on local legal traditions, institutional configurations, and political circumstances.
Although exceptions are numerous, courts in countries with civil law traditions, generally
speaking, tend to shy away from judicial review of the laws themselves. Civil law jurisdictions
typically carve out a specialized legal domain, administrative law, to assess bureaucratic actions,
and locate administrative judges either in specialized courts (Germany, Austria), or in councils of
state (France, Belgium, Italy). These courts apply a variety of tests to assess the ―legality‖ of
administrative actions (as in the German conception of the Rechtsstaat or the French Etat de
Droit), with the tests typically focused on a review of administrative decisions, rather a review of
the laws that guided administrative choices. (This is true in theory; in reality, civil law courts
inevitably find themselves interpreting law). 60 Civil law courts often do, however, second guess
administrative choices, and assess the substantive reasoning of administrators.


58
   See Archon Fung, Hollie Russon Gilman, and Jennifer Shkabatur. Technologies of Transparency for
Accountability: An Examination of Several Experiences from Middle Income and Developing Countries. The Open
Society Institute. October 1, 2010.
59
   Ibid, p. 49.
60
   John Merryman, The Civil Law Tradition, Stanford University Press, 1985.

                                                    19
In contrast, courts in common law countries, although they generally do enjoy the power to
assess the substance of laws, have typically refrained from second guessing the substantive
rationale for administrative choices, confining themselves to a more formal review of the
processes that administrators followed (e.g., Did administrators act in conformity with the law
and within their delegated authorities?). In Canada, for instance, the case Council for Civil
Service Unions v. Minister for the Civil Service (1985) established that the only grounds for
judicial review of administrative action were illegality, irrationality, and procedural
impropriety.61 Still, however, common law courts sometimes do scrutinize administrative
choices despite the doctrinal reluctance to do so.

In the United States, for instance, common law courts have compelled authorities to grant
hearings to individuals to explain or review their decisions, compelled agencies to improve their
record keeping, to explain the underlying scientific basis of their decisions, and to assess the
basis of administrative actions so as to be sure that they were not ―arbitrary and capricious.‖62
Ultimately, the requirement to investigate potential arbitrariness led U.S. courts to take a ―hard
look‖ at the substance of administrative reasoning. That tendency remains, even though in 1984
the US Supreme Court tried to roll back judicial investigations that focused on the substance of
administrative decision making.63

An expanding area of concern is the application of administrative review in common law
countries where services have been privatized or contracted out. One of the reforms that the UK
Law Commission suggested concerned the identification of those activities that, even if
implemented by private actors, are ―truly public‖ and hence subject to a kind of administrative
scrutiny – and hence clients to a kind of redress – that is distinct from that which exists under
private law.64 The Law Commission suggested creating a category of cases that would be
considered ―truly public.‖ The Commission formulated a definition derived in part from the
concept of the ―emanation of the state‖ from EU law.65 This is where private bodies have
―special powers beyond those which result from the normal rules between individuals.‖66

As a result of divergent conceptions of what judges are supposed to do, courts in civil law
countries typically operate at the ―retail‖ level when working to redress grievances, whereas
common law courts are more comfortable operating at the ―wholesale‖ level. In the area of

61
   [1985] A.C. 374 (―Judicial review has I think developed to a stage today when without reiterating any analysis of
the steps by which the development has come about, one can conveniently classify under three heads the grounds
upon which administrative action is subject to control by judicial review. The first ground I would call "illegality,"
the second "irrationality" and the third "procedural impropriety‖).
62
   Tom Ginsburg, The Judicialization of Administrative Governance: Causes, Consequences, and Limits, in
Administrative Law and Governance in Asia: Comparative Perspectives, (Tom Ginsburg & Albert H. Y. Chen eds.,
2009), pp. 12-14.
63
   Chevron USA v NRDC, 467 U. S. 837 (1984)
64
   Administrative Redress: Public Bodies and the Citizen, A Consultation Paper, The Law Commission,
Consultation Paper No. 187. Available at www.lawcom.gov.uk/docs/cp187_web.pdf, page 77.
65
   Case C-188/89 Foster v. British Gas [1990] ECRI-3313 at p840.
66
   Id., at 20.

                                                          20
health policy, civil law courts in Latin America have recently emerged as an extremely active
retail redress procedure. In Brazil, over the last decade, there have been estimated 100,000 cases
in which courts have reviewed whether individuals received medical treatments (mostly
medications) to which they were arguably entitled under the terms of the 1988 Constitution and
the operational guidelines of the SUS. The state of Sao Paulo alone spent around US$130 million
in 2007 to comply with judicial orders.67 Figure 1 below illustrates the recent explosion in health
cases in the courts of some Brazilian states – generally, in the relatively wealthier south and
southeastern states. Similarly, the Colombian courts heard more than 142,000 claims regarding
health cases (mostly, that health insurers had unfairly denied them treatments or medications) in
2008 alone.68 In Costa Rica, there have been a larger number of constitutional claims against the
social security agency (CCSS), and overall personal clams have increased every year since
1997.69 In all three of these countries, claimants have won the large majority of cases, but there
have been concerns that the middle class individuals have availed themselves of judicial redress
much more frequently than the most marginalized individuals and groups.

Another retail model is court-administered mediation or alternative dispute resolution. In India‘s
common law system, the courts have played an important role in creating new venues for
redress. In a significant ruling, the Indian Supreme Court allowed patients to use Consumer
Protection Courts, in addition to ordinary courts, to obtain compensation and redress in cases
involving medical malpractice.70 The Indian courts also oversee alternative dispute resolution
forums known as ―People‘s Courts‖ (Lok Adalats) in which redress claims from a variety of
sources are subject to judge supervised mediation. There is concern, however, about the
effectiveness of these forums.71 In the UK, the recent Law Commission report has sparked a
debate about the use of alternative dispute resolution to address administrative redress.72

Specialized courts can also be used to handle redress claims at the retail level. In Switzerland, the
Federal Insurance Court, located in Lucerne, is responsible for social insurance law as part of
administrative law. As a court of last resort, it renders judgment on appeals of decisions by
cantonal insurance courts and by other authorities in federal insurance cases.73

67
   Octavio Ferraz, Right to Health Litigation in Brazil: An Overview of the Research, SSRN Working Paper, May 15
2009.
68
   Alicia Ely Yamin and Oscar Parra-Vera, Judicial Protection of the Right to Health in Colombia: From Social
Demands to Individual claims to Public Debates, Hastings International and Comparative Law Review 33:2 2010
69
   Bruce Wilson, Rights Revolutions in Unlikely Places: The Cases of Colombia and Costa Rica, forthcoming
Journal of Politics in Latin America 2/2009: 59-85.
70
    Indian Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651
71
   Marc Galanter and Jayanth K. Krishnan, Brad for the Poor: Access to Justice and the Rights of the Needy in
India, Hastings Law Journal 55 2004 p. 789
72
   Administrative Redress: Public Bodies and the Citizen, A Consultation Paper, The Law Commission,
Consultation Paper No. 187. Available at www.lawcom.gov.uk/docs/cp187_web.pdf. See also Kirkham,
Richard(2008) 'Quiet Moves Toward Proportionate Dispute Resolution: The Law Commission's Consultation Paper
on Administrative Redress', Journal of Social Welfare and Family Law, 30: 2, 163 — 174; and Mullender, Richard
(2009) ―Negligence, Public Bodies and Ruthlessness,‖ The Modern Law Review,
73
   http://www.bger.ch

                                                      21
The ―wholesale‖ approach to redress is exemplified in the social grants cases in the common law
courts of South Africa. To root out alleged corruption in the awarding of social assistance, in the
late 1990s the Eastern Cape suspended the payment of almost all social grants, including grants
for disability. When the Legal Resources Centre and other NGOs pressed the provincial
government about the legality of that action, the provincial authorities agreed to establish a
―Pensioner‘s Friend‖ and related offices to redress wrongful suspensions of assistance. Those
claiming to have been wrongfully denied payments were asked to reapply. But the provincial
authorities did not staff the new offices effectively, and redress requests languished. Since that
period, tens of thousands of applicants have brought petitions to courts for back payment of those
grants along with (in some cases) interest, penalties, and legal costs. Magistrates courts in South
Africa granted many of these petitions, but the province still remained slow to comply.
Subsequently, the High Court, the Supreme Court of Appeal, and the Constitutional Court
intervened repeatedly. But after encountering continued bureaucratic and political delays, these
courts moved from a retail to a wholesale approach, beginning around 2004. In Mashavaha v
President of the RSA, the Constitutional Court effectively removed provincial control over the
grants and re-centralized the administration of those social assistance grants in the Eastern Cape.
That wholesale measure was deemed to be more effective than a continual, serial approach to
redress.74

In summary, courts, though expensive, remain an important option for redress in the social
sectors. Their availability, the extent of their powers, and their relationship to extant redress
procedures within line ministries depend on local legal traditions. In providing redress, courts
can operate at either the retail or wholesale levels.




74
  See (Berger 2008) For background see also Njongi v Member of the Executive Council, Department of Welfare,
Eastern Cape 2008 (4) (CC) (28 March 2008). Also Mashavaha v. President of the RSA 2004(12) BCLR 1243 (CC)
(6 September 2004)

                                                     22
Source: (Hoffman and Bentes 2008)(Hoffman and Bentes 2008)Hoffman, Florian, and Fernando R. N. M. Bentes. 2008. "Accountability for
Social and Economic Rights in Brazil." In Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing
World, ed. Varun Gauri and Daniel M. Brinks. New York: Cambridge University Press.


V.        The demand side

In general, low levels of literacy and political/social marginalization mean that many individuals,
including ethnic minorities, will not take advantage of redress procedures even where they are
well designed. 75 It is important to stimulate demand. Measures to stimulate demand can include
explicit financial support (or just a supportive legal environment) for NGOs/CSOs, granting
access to independent media, and publicizing extant redress procedures.

NGOs/CSOs

A basic problem with redress is that many people do not feel entitled to the services they receive.
Basic service delivery is, in these circumstances, understood to be a favor of the patrón, a
dispensation from a Big Man, or charity from the upper classes, rather than an entitlement. In
other words, there has not occurred that transformation of outlook in which, as Hannah Pitkin
puts it, ―I want‖ has become ―I am entitled to.‖76 This transformation occurs more often, of
course, after a certain threshold of human development and democratic freedom are achieved;
still, many individuals in high- and middle-income countries do not access redress procedures
even when they are available. Often, civil society organizations and non-governmental
organizations can raise rights consciousness, sponsor and initiate access to a redress procedure,
or make a claim for collective redress that brings together resigned, fatalistic clients with those
who are more motivated and entitled.

A variety of NGOs and CSOs have played this role. Some have had international links whereas
others have been domestic. Some have focused on direct legal strategies themselves, such as the
Legal Resources Centre in South Africa, mentioned above, while others have focused on
consciousness raising and building a sense of entitlement, such as Samata and Nijera Kori in
Bangladesh. Some are state-sponsored entities, such as the conselhos da saúde and other
―instâncias de controle social‖ in Brazil, while others have little connection to governments. It is
difficult to generalize about the role of NGOs and CSOs in stimulating and organizing demand
for redress. The main policy to support this form of demand stimulation would be to establish a
facilitative legal, financial, and political environment for organizations that can play such roles.77

One of the crucial roles that NGOs can play, with respect to demand for redress procedures, is
the direct provision of legal and quasi-legal support to marginalized individuals and groups. As
the World Development Report 2000 noted:

75
   ―Rights, Responsibilities and Social Protection. The Dynamics of Supply and Demand: An Issues Paper,‖ Julie
Gaunt and Naila Kabeer, 1.
76
   Hannah Pitkin. 1981. Justice: On Relating Public and Private. Political Theory 9:327-352.
77
   For information on tax policies, registration, funding, and other policies that are supportive of NGOs/CSOs, see
issues of the International Journal of Not-for-Profit Law: http://www.icnl.org/knowledge/ijnl/index.htm

                                                                    23
        Even when the legal system is well run, poor people face constraints in using it.
        Poor people typically have little knowledge of their rights and may be deliberately
        misinformed. . . Almost any form of legal assistance is of value. But
        comprehensive services from independent legal service organizations are
        especially valuable to poor people, and the demand for such services is high.
        Standards should be developed to make them even more effective. Legal service
        organizations also need financial support from donors and civil society, but they
        have to be allowed to function autonomously, taking direction from poor people
        themselves.78

There are many such organizations that specialize in litigation in the social sectors, now in
existence in developing countries. Some of the most prominent include the Human Rights Law
Network, the Lawyers Collective, and the People‘s Union for Civil Liberties, in India; the Legal
Resources Centre and the AIDS Law Project, in South Africa; Acao Educativa and the various
offices of the independent Minsterio Publico, in Brazil; the Jakarta Legal Aid Bureau, in
Indonesia; and the Center for Economic and Social Rights, in Nigeria.79

But there are risks to outside funding of legal services NGOs. One risk is the introduction of a
mediating actor (dependent at least in part upon foreign donors or political actors for its funding)
between the demands of the poor and the claims made, and thus the potential loss of the rights
bearers‘ ability to set priorities. This mediated intervention, via NGOs, moreover, requires legal
devices that may or may not be available in a given country. India‘s PIL, Brazil‘s ação civil
pública, and abstract constitutional challenges to legislation are examples of legal devices that
effectively grant standing to civil society or state-sponsored third parties to assert the claims of
those who otherwise lack the resources to do so. Nigeria has much more restrictive standing rules
that limit the participation of civil society groups, and there seems to be no equivalent to Brazil‘s
Ministério Público in any of the other countries. The degree to which direct effects will favor
already privileged groups will depend on the availability of these legal devices and of charitable
or state resources to pursue claims. The more that courts act in response to the collective claims
of public-interest actors, the more the benefits are likely to extend beyond the middle and upper
classes in urban settings.



Media

There is a two-way communication process that is important for redress procedures. First,
agencies and redress venues can provide information to clients about the existence and
functioning of redress procedures. Second, independent media can provide information to

78
  World Development Report, 2000, pp. 103, 105.
79
  See Varun Gauri and Daniel Brinks, Courting Social Justice: Judicial Enforcement of Social and Economic Rights
in the Developing World, Cambridge University Press, 2008.

                                                      24
dispute resolvers regarding significant failures in basic service delivery; and independent media
can publicize notable grievances and complaints, thus amplifying the ―fire alarms‖ and
generating pressure to address them wholesale.

Booklets, flyers, websites, and advertisements in radio and television are means by which line
agencies can share information about how redress procedures work. The Department of Work
and Pensions in the UK has a booklet entitled ―If you think our decision is wrong‖ that explains
in detail how to appeal a decision and what happens during the appeals process. The booklet also
contains a list of other sources of information, all the relevant deadlines, and a copy of the appeal
form that can be filled out and submitted.80 The booklet and the website are written in clear and
colloquial language, which ensures that the process is accessible to the general public. The DWP
has also numerous reports assessing the effectiveness of its programs.81 India‘s ESIS website
lists the address and contact information of the Public Grievance/Complaint Officer. There is
also an online form that could be filled out to submit complaints or grievances directly.82
However, on the Indian ESIS complaints website, there is no further information on either the
procedure or the standards that would be used to judge grievances or complaints. There is also no
information on previous complaints that had been filed or how they had been settled.

Independent media investigative journalists can amplify claims for redress. Although news
media are also ―agenda setters‖ and ―gate keepers,‖ it is their function as ―watch dogs‖ that is
most important in aggregating and amplifying demand for redress.83 Although news outlets
sometimes focus on scandalous or titillating events, rather than day-to-day disrespect and
unfairness, if the denials are egregious or frequent, a news outlet might run a story on them. This
can then lead to a response on the part of officials who staff a redress process. And if redress is
provided and subsequently publicized, the process may raise the hopes of other citizens, who
might be more inclined to demand redress for themselves in the future.

At the same time, tropes in the news media tend to follow patterns available in the popular
imagination. For example, when designing social policy, Brazilian policy designers typically
anticipate efforts by unqualified individuals to fraudulently attain benefits, but are less likely to
anticipate the bureaucratic processes that will lead to the denial of benefits to qualified
individuals and families. Both the law establishing and the regulation implementing the Bolsa
Família program included detailed sections on procedures to identify and penalties to punish
fraud, but do not describe standard redress procedures to give unjustly excluded individuals and


80
   DWP, February 2009, ―If you think our decision is wrong,‖ available at: http://www.dwp.gov.uk/contact-
us/complaints-and-appeals/#ac
81
   Their database of recent reports (1990-2010) can be searched at http://research.dwp.gov.uk/asd/asd5/rrs-index.asp
82
   http://esicvadodara.org/index_com.html
83
   Pippa Norris and Sina Odugbemi, The ideal roles of the news media in the public sphere, Harvard-World Bank
Workshop, May 29-31, 2008. The paper is available at:
http://www.hks.harvard.edu/fs/pnorris/Conference/Conference%20papers/Norris_Odugbemi%20The%20roles%20o
f%20the%20news%20media.pdf

                                                        25
families a fair hearing.84 In much the same fashion, ―articles mentioning errors of inclusion of
the non-poor [in the Bolsa Família program] were more frequent than articles reporting on errors
of exclusion of the poor.‖85

In summary, a two-way information channel facilitates the awareness and use of redress
procedures. Line agencies can provide information about the existence and use of redress
procedures, and independent news media are important for supporting the aggregation of demand
for redress procedures.

VI.     Conclusions


Redressing grievances and complaints regarding basic service delivery is important for basic
fairness. In addition, redress procedures can help address principal-agent problems in the
implementation of social policies and provide information to policy makers regarding the
effectiveness of their policies. To function effectively, a system of redress requires both a well-
designed and linked supply of supply of redress procedures and, especially if rights
consciousness is not well-developed in a society, a set of organizations that can stimulate and
aggregate demand for redress. On the supply side, there are three kinds of redress procedures:
administrative venues within line agencies, non-judicial public venues such as ombudsmen and
panels outside line agencies, and courts. On the demand side, the key institutions are
NGOs/CSOs and the news media, both of which require a receptive political and economic
climate to function effectively. Overall, redress procedures are under-developed in many
developing countries, and deserve further analysis, piloting, and support.

Looking forward, the following are areas where further analytic and operational research would
be useful. First and most basically, a comprehensive review of the kinds of redress procedures
used in developing countries, and some account of their value or impact, remains to be done.
Second, further work is needed on the conditions under which redress or grievance procedures
should be conducted in a wholesale mode, and when in a retail mode. Third and more generally,
analytic and comparative research on the conditions for effective administrative law, what it
means for the separation of powers, and its value for development, is just beginning, and needs
more analytic work as well as more case studies.86 Finally, important work remains to be done on
the linkages between the supply of and demand for redress mechanisms; and particularly on what
explains high levels of utilization in some settings but not others, and on what role the media
plays in both generating demand for grievance procedures and stimulating compliance with the
findings of the bodies involved in administering redress.


84
   Lei No 10.8326 de 9 de Janeiro 2004; Decreto No 5.209 de 17 de Setembro 2004
85
   Kathy Lindert and Vanina Vincensini, Bolsa Família in the Headlines: An Analysis of the Media‘s Treatment of
Condition Cash Transfers in Brazil, Summary of Results, April 1, 2008, p. 2.
86
   See for instance Susan Rose-Ackerman and Peter Lindseth, editors, Comparative Administrative Law, Edward
Elgar 2010.

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