Local Government, Housing and Planning Committee

Meeting date: Tuesday, December 6, 2022

Official Report 578KB pdf

---

Scottish Public Services Ombudsman Annual Report 2021-22

Item 2 is to take evidence on the Scottish Public Services Ombudsman’s “Annual Report 2021-22”. We are joined by Rosemary Agnew, who is our ombudsman; Niki Maclean, who is the SPSO’s director; and Andrew Sheridan, who is the SPSO’s head of improvement, standards and engagement. I welcome our witnesses. Before we move to questions from members, I invite Rosemary Agnew to make a short opening statement.

Thank you for bringing forward this session, which normally takes place much later in the parliamentary year. Meeting earlier helps with the context.

I will highlight a few things that we will probably cover later in the session. Most fundamental is how we are doing on Covid recovery. A short while ago, we sent the committee an update on the backlog of cases that we had. Now that we have all our staffing in place, we are seeing quick improvements, and I hope that there is encouraging news on that.

More widely, some sectors—notably health—are struggling to an extent with coming out of Covid and with things such as staffing levels and demands on their services. That is having a knock-on effect on us, too, because bodies cannot always respond to our inquiries as quickly as we would like.

We are actively engaged in developing our child-friendly complaints processes. That is not statutory yet; the work is in anticipation of such an approach becoming statutory through incorporation of the United Nations Convention on the Rights of the Child. The Scottish Government has given us extra resource for that.

Over and above that, one of the most strategically impactful things is the growing and complex policy and legislative landscape. A number of significant pieces of legislation are coming through, including the National Care Service (Scotland) Bill, the Patient Safety Commissioner for Scotland Bill and the proposed human rights bill. There are on-going reviews, such as Dame Sue Bruce’s review of the scrutiny landscape for care. They are all looking at different things in relation to complaints. There is very much a focus on accessibility at the first stage, which we welcome, but there is increasing concern that the system is becoming even more labyrinthine for service users to pick their way through.

Legislative changes might mean that the additional powers that we have mentioned before will be enacted through other acts. We have paused our report on further powers to allow a few more weeks to see where that work is going.

We have not just been dealing with complaints; we do lots of other things. We have completely redesigned and relaunched the complaints-handling training that we provide, and Andrew Sheridan will probably tell the committee a bit more about that. We have moved to an online delivery method, which seems to be going well so far. We are conscious that, as digital services develop, it is really important to be on top of your data, and we have an ambitious data project under way, which started towards the end of last year. It will leverage greater value from our data and enable us to engage more meaningfully with groups such as the sharing intelligence for health and care group.

Our Scottish welfare fund team was impacted a lot during the reporting year by dealing with self-isolation support grants, but those grants have stopped and we are working through the tail end of those cases. We now face different issues, which relate to the cost of living crisis. Increased demand for crisis grants is coupled with out-of-date Government guidance, which makes processing applications more complex than it should be—the issue relates particularly to how to calculate need, and we can touch on that further.

My final point comes back to where we started—resources. We have welcomed the additional resource from the Scottish Parliamentary Corporate Body to help us with Covid recovery. It has enabled us to address that really positively and to do other work, such as tackling our oldest cases. We have worked through them and we are very much on top of that work compared with where we were at the end of the reporting year and at the end of the year before that.

Looking forward, I would say that we can see that the volumes of complaints received are rising, and we expect them to be at pre-Covid levels again by the end of the year. During Covid lockdowns—and before—we were already putting in place efficiency changes and changing some of our processes. We do not know for certain how effective they will be post-Covid, when we are doing normal running, if you like. At the moment, it is fair to say that things look promising.

That has touched on most of the things that we are likely to pick up. I am happy to take any questions.

Thank you very much. It was good to hear your opening statement and have you flag up the increasing complexity of legislation and the workloads that I imagine might come out of that.

You closed with the piece about complaints. It is good to hear that you do more than work on complaints, but I would like to focus on complaints. The committee would be interested to hear about the 17 per cent increase in public service complaints that the ombudsman received between 2020-21 and 2021-22, as noted in our papers. You touched on that a little. Will you expand on the reasons for that increase? Have new trends been identified in the recent case figures?

The increase is probably not due to increased demand overall; it is more of a reflection of a decrease in demand during the first year of Covid. We found that, in the previous year—the first year of lockdowns—the number of complaints went down quite a lot, so our demand during that year fell. In 2020-21, we saw fewer health-related cases; they began to pick up in 2021-22 and they continue to pick up. The increase is probably a combination of some increased demand and demand going back to where it was pre-Covid. Some of that reflects public bodies working through their complaints. That is what is most likely. Does Niki Maclean want to add anything?

The Parliamentary and Health Service Ombudsman carried out research on the question, which showed that people were more reluctant to complain—particularly about the health service—during Covid. That gives us a clear indicator that that is partially the picture here, as Rosemary Agnew said.

It makes sense that the context resulted in the change.

I will move on to waiting times. When we met in March, you told the committee:

“Too many people are still waiting too long to have their complaints looked at.”—[Official Report, Local Government, Housing and Planning Committee, 29 March 2022; c 6.]

I would be interested to hear what has changed since March, given that the SPSO website still warns of a nine-month delay. What impact is that delay having on people’s willingness to progress complaints?

There has been a positive move. At the end of March, we had 804 cases waiting for allocation, and the waiting time was 11 months, although I stress that that was not the waiting time for every complaint. Cases are triaged—we identify cases where there is a particularly vulnerable person, an on-going health issue or a significant public interest, when the decision might impact on more than just the complainer. Such cases go through a more fast-tracked route; they currently take up to 12 weeks but are likely to have had work done on them before being allocated.

As for cases that are not fast tracked in that way, this is a bit frustrating—if we had appeared at the end of the week, we could have said that the period is eight months, because one or two such cases will probably be allocated this week. We now have 384 cases in our allocation pool, compared with the 800-odd that we started with. As of yesterday, the period was nine months—almost eight—once cases are allocated. We have also been working on older cases, and we now have only one that is more than two years old, which I hope is relatively near its conclusion.

As well as clearing our old cases as far as we can, which has freed up investigator time to take on allocation of new cases, we have had additional resource, which is focusing on our project for the allocation. Those staff have dealt with 367 cases—obviously, things were still coming in. In the six weeks since we wrote to the committee at the end of October, we have found that, because we have the whole team in and trained, we are beginning to get through cases much more quickly and get them allocated. All other things being equal—I cannot ever say that something will definitely be the position—and if nothing else major hits us during the winter, we are confident that we will be on top of the situation with our additional resources.

The resources are for only a finite time—for a year that runs over two reporting years. I feel that we have the situation under control, and I am confident that it will be as good as clear by the end of this reporting year.

It is worth emphasising a point that relates to our performance indicators. Our key performance indicator for our oldest cases is to close 85 per cent of complaints in 260 working days, which is in effect a year. Last year, we achieved that for only 31 per cent of complaints. This year, we still do not expect to meet the aim, but that is a planned thing, because we have been focusing on the older cases. I can see that that is not ideal, and I am grateful to people for their patience when we explain what the delays are and why they have occurred with our older decisions, but the direction of travel is good. We have done lots on the unallocated cases, and the times are coming down—they seem to be coming down by roughly a month for each month that passes, which is good news.

09:45  

That certainly is good news. I definitely agree that the direction of travel is right. The committee discovered on your website that the waiting time was 10 months last week and that it is nine months this week. As you said, if we were at the end of this week, it would be eight months. We wonder about that. If people see on the website that the waiting time is nine or eight months, could that deter them from complaining? Is there a way to parse that a bit more so that people understand it? Does the website have something that allows people to understand that there is a fast-track process so that, in a good number of cases, the period can be 12 weeks?

We have information that asks people to tell us if there is something that they think that we need to look at sooner. We also ask people to tell us if something changes. The wait probably puts some people off; I have been aware of more correspondence from constituency MSPs asking about that very thing. We are open about why we are there and what we do. We advise MSPs to advise their constituents to make a complaint so that we can look at it. Sometimes a complaint comes to us and it needs to go back to the public body first or it is out of jurisdiction. We process such cases quite quickly. It is the cases that go through all the jurisdictional tests that remain unallocated. It would be naive to say that the delay does not affect some people, because I think that it does, but in all our communication, including our communication with representatives, we encourage people to submit their complaint.

Another important reason for encouraging people is that doing so enables us to spot trends, such as whether we are getting more complaints about a particular sector or a particular issue. The short answer is therefore yes—the time probably acts as a deterrent, but we are doing our best to communicate to as many parties as we can about it.

Thanks for that. I will now bring in my colleagues.

I am sorry—I think that Willie Coffey has a quick supplementary first.

Good morning. I wonder whether you can clarify something for me. We have been discussing how it can take nine months for the complaints assessment process to begin. Did I hear that right? Is that how long it takes for you to begin to assess complaints?

No. We are talking about a particular stage. When complaints come into the office, about 45 per cent of them are handled in the initial assessment. For example, we will make sure that the person has already complained to the appropriate public body, and we will look at jurisdictional issues such as whether they are out of time and whether they should be going down a different route or to a different organisation. The assessment often starts at that point.

Also, we often make some initial inquiries for additional information. For example, we will seek the public body’s response to the stage 2 complaints, if we do not already have it. It is therefore not the first time that the complaint is looked at. Of course, at the end of the initial assessment, we will triage cases, too, to make sure that those that really should be fast tracked are identified.

As a result, some work has already been done on the complaints that we are talking about, but we have reached the point at which they are in jurisdiction but are not classed as a priority. Obviously, they are a priority—all cases are a priority—but, in comparison with others and relatively speaking, they are not among the priority cases.

In that case, what do you mean when you talk about the nine months?

We mean the period of time from when we get the complaint.

When you get it.

It is from the point of assessment until the point at which we allocate the complaint.

I am sorry—it must be me, but I am still no clearer.

I am sorry. When they have been through all the initial—

What is meant by the nine months? Does it mean that, if I were to complain about something to you today, the complaint would not be looked at for nine months?

It is the period from the point of initial assessment and our saying that the complaint is one for us and it goes into the pool of unallocated cases. That is where the nine months come from. We will have already done some work on the complaint before then.

Some cases are handled very quickly, but there is a point at which we have to say, “I am sorry. The complaint is unallocated, and it will not be allocated for up to nine months.” However, we tell people that there will be a delay at the outset when they come to us. If things happen sooner, it is a bonus.

I should clarify that the clock starts as soon as someone brings the complaint.

I am sorry—I did not really make that clear, did I?

So that applies to cases that you take forward and investigate. However, for cases that fall outwith your scope, which is quite a substantial number of the complaints that you get, do those folk get an early indication that you will not be taking it forward? Surely they do not have to wait for nine months to be told that.

Yes. Those people are told pretty much within a few weeks, because it seems inherently unfair to keep something for nine months and then tell somebody that you are not going to look at it.

Right.

I am sorry, but I have one further clarification. Some of these cases also get resolved; we achieve resolution for individuals, even at that early stage. It is not necessarily that this is always a matter of our saying, “We cannot do anything for you.” It might well be that we have secured a resolution.

I should add that my team might well be involved with the public body that the complaint has come from, so somebody will already be involved with that case. Although we are not investigating the matter ourselves, some work will still go on with the public body in question. There might not be enough information, for example; some learning might need to be done; or some support might need to be put in.

We triage our cases in the same way that we would expect public bodies to; there is a bit of give and take there, and we will continue to work on such matters. However, it can take up to nine months for the ones that require complex investigation to be allocated.

That clears it up. Thank you very much.

Thanks for getting that detail on the record, Willie. I should also point out that we have heard that, in a few days’ time, the delay will be eight months. We hope that, month on month, the delay will become less and less as you get additional resources to take on the work.

I call Marie McNair.

Good morning, panel. I have some questions about staff. I note from the annual report that, in 2021-22, a total of 1,100 staff absence days were recorded across the organisation’s 90 staff, or an average of 12.2 sick days per staff member. That is almost double the rate in 2020-21. Why is that, and how do the figures compare with other Scottish public bodies? Have sickness levels improved?

The short answer is that we had some long-term sickness. However, as I am a bit hoarse, I will ask Niki to take that question, if she does not mind.

That is exactly what it was: we had a small number of long-term absences. Our sickness absence rate for non-long-term absences is actually lower than the public sector average.

Thank you for clarifying that.

My next question is about staff turnover, which was 13.8 per cent in 2021-22. Do you know how that compares with other public bodies as well as with previous years?

I do not think that we have specific numbers for that. However, staffing is a real issue across the public sector, and what I have observed through talking with public bodies and in conversations with other ombudsmen is that there has been, I think, a shift in the labour market. During lockdown, we saw people making certain lifestyle choices, because they wanted to change what they were doing. For example, more people took early retirement or changed their working patterns, and the issue of work-life balance really came under the spotlight. We also tend to lose people to better jobs—I say “lose”, because I feel it as a loss. Some of our staff go off to get promoted or get better jobs in other places.

Our turnover is a combination of all those factors. The fundamental reason is that, as in other areas of the public sector, a lot of lifestyle and work-life balance decisions were made and early retirements taken—or, I should say, retirement that is early for us. A number of our staff will have come from somewhere else—the police, say, or the national health service—and already have a pension. I am sorry that I cannot give you any numbers, but I think that those are the reasons, and they are fairly much in common with what has happened with other ombudsmen and public sector organisations.

The figure was 13.8 per cent. Are you going to carry out work to see how you compare with other public bodies or do you have that data just now?

We do not have the data just now. I do not think that it is something that we have specifically looked at.

As members of the human resources interest group of the Ombudsman Association, which covers the UK and Ireland, we compare data fairly regularly. As Rosemary Agnew has said, we know from discussions with other similar bodies that what we were seeing was not out of line with what other organisations had been seeing for the reasons that have been described, and what we, as well as other organisations, are now experiencing is levels returning to normal. It was, therefore, a particular period in time.

Thank you for that. I have no further questions, convener.

I call Willie Coffey, who has a number of questions.

On the budgetary situation, Rosemary Agnew mentioned in her initial remarks that she received additional resources to help with issues and problems arising from Covid recovery. Did they come on top of the 2.1 per cent uplift mentioned in the report?

There were a number of fixed contracts for staff taken on during Covid. Staffing levels are always a moving feast for us, in a way, because any rise is generally associated with our taking on additional functions. For example, we took on additional staff when we took on the whistleblowing function; we have additional resource to develop a child-friendly complaints process; and we were given additional resource for the welfare fund, just because of volumes. Our staff baseline does not really change, but the rise that we are seeing is likely a reflection of those other things that we are taking on.

Do you have enough resource to deliver the service and claw back the backlog? Is there enough resource within the team to make that progress?

The resource for the backlog is going to serve its purpose. If you are asking me whether I have enough resource in general, though, my answer would be that we never have enough. However, we will always deliver a quality service; what tends to be impacted more are timescales and the like, because you can do only so many investigations. If I were given more resource, I would put it into Andrew Sheridan’s team, where we develop training, provide advice and guidance and carry out a lot of stakeholder engagement. Those are the areas where, I think, we add the greatest value.

I would couple that with our support and intervention policy. As I have said, we are tracking data. We use our own data partly to target resources where we see themes and trends emerging with particular organisations or sectors—indeed, one of the current year’s main aims has been to increase our stakeholder engagement—but those are the sorts of resources about which we cannot say, for example, “X complaints have been done this year.” One of our challenges is how we measure impact rather than output.

We probably have enough resource to keep our complaints service going, subject to our backlog being cleared, but in answer to your question, I would say no, I never have enough. I am mindful of the need to use what we have efficiently, so we are constantly learning and improving ourselves and trying to do more with the same—or, indeed, with less.

“Probably” is a good word—I will accept that.

As for other issues that come out of your report, you yourself have noted that, in recent years, there has been

“a marked improvement in how public bodies handle complaints”. [Official Report, Local Government, Housing and Planning Committee, 29 March 2022; c 4.]

Briefly, what is happening there? What is causing that?

10:00  

It is interesting. During lockdown, there was a reduction in the efficiency of complaints handling by public bodies—and understandably so, because front-line resources were being put into other public bodies, particularly health bodies, certainly in the early days and during this particular reporting year. Indeed, a few public bodies advertised on their websites the fact that they were no longer handling complaints; Andrew Sheridan’s team very quickly wrote to or contacted them, and we gave them advice and support on how to look at these things.

However, because of the model complaints handling approach that has been taken in Scotland for such a long time and because of the engagement on complaints standards that we have had for several years now, we are seeing the quality of many investigations improving considerably at a local level. It is often the case now that when we get a complaint, it is because the complainer is unhappy with a particular decision, and sometimes, when we look at a case, we think, “Do you know what? The initial investigation was all right.” If a public body has identified service failure and the learning that can be done and has taken measures to put things right, we will check and make sure that it is doing what it said that it would do, but we will not take that to a very detailed investigation. We will make initial inquiries and check that what we have been told seems accurate. With health-related complaints, we often get some advice from clinical advisers.

I do not think that it is fair to put somebody through a long investigation that is likely to have the same result, especially where the public body in question has already identified the learning that needs to be done. What we are seeing is the culmination of the benefits of model complaints handling. It is time for a refresh of the approach, but it is definitely working.

Thank you for that detailed explanation.

Finally, the report says that there was an increase in the total number of complaints received over the year. Perhaps that, too, is explained by the Covid factor or the climb back from the Covid experience, but I would welcome your comments on that. I also note that fewer complaints are being investigated. Why are more complaints coming in but fewer being investigated?

Some of that volume is to do with Covid-related recovery, but some of it is to do with the fact that, as Niki Maclean has mentioned, we have been working hard to try to resolve cases. As a result, we are resolving more cases without investigation—not, I should say, through formal mediation, but through a mediation-type approach. For example, we are much more active about asking people, “What would resolve this for you?” That is one reason for the reduction in the number of cases going to a detailed investigation. That said, although there might be no further benefit to the complainer in investigating certain cases, there might be a wider public interest in doing so, and we will always pick that up.

What you have highlighted is a combination of handling cases differently in the earlier stages and taking a more resolution-based approach. The knock-on effect is that the cases that actually require a detailed investigation get one. As you will see, our uphold rate has risen, too, and that is because the cases that we take to a detailed investigation are more likely to involve more complex issues. A lot of those cases will be predominantly health related, so they will require a lot of clinical advice and support.

As I have said, we target our resources where they will add the greatest value. That is probably the best summary that I can give you.

Thank you very much for that.

I was interested in your comment that it might be time for a refresh of the model complaints handling approach.

I call Paul McLennan.

You may or may not know that a few members of the committee are ex-councillors. Obviously, as the Local Government, Housing and Planning Committee, we are interested in the nature of complaints that are made about services that are provided by local authorities. There was an increase of 25 per cent between 2020-21 and 2021-22. We have a breakdown of the numbers, and we are looking at housing, planning and so on. Do you want to say anything more about that? Did any trends come out in that particular year? Can Rosemary Agnew give a bit of context?

I cannot say that there are specific trends in this reporting year. I am detecting that people are complaining about different things. We are beginning to see cases relating to Covid. A lot of the local authority ones relate to social care, because such complaints come through that route. I am not conscious of any obvious trend. I do not know whether Andrew Sheridan has picked up anything from his team.

My team meets the local authority complaint handlers network. We look at data from across local authorities and try to pull out themes and trends, and we have not seen anything specific in that regard. We have focused on making sure that public bodies are signposting to us as we come out of Covid—that picks up on the previous question—and that might be an indication of why the number of complaints has gone up.

We are trying to help public bodies to analyse their internal themes and trends. As we reference in our notes, we are starting to look at the hidden data. We are very ambitious in how we look at our data in our data maturity project. We are working with local authorities, as one of the biggest networks, to show that just because something is not there does not mean that there is not an issue with it. Some of those things are now starting to come through. Complaints are much more widespread; they are not just focused on schools or placement requests, for example. We are getting quite an eclectic mix of complaints coming in.

That is good. There will be a watching brief to see what comes out next year.

My next question is about own initiative investigative powers. Can you explain what that means in practice? I know that they are already in place in Wales and Northern Ireland. How would Scotland benefit from them?

Own initiative investigations are conducted without first having had a complaint. I will summarise the sort of investigation that it would be: it would be giving a voice to the voiceless. There are vulnerable groups and vulnerable people who do not make complaints, and we do not always know why they do not make complaints. Sometimes, there are structural issues—if you are homeless, it is very difficult to make a complaint, even to your local authority. Own initiative investigations would give us the opportunity, using our data and using trends, to investigate things that have not been complained about to us. The Public Services Ombudsman for Wales, for example, did an own initiative investigation of homelessness during Covid.

There is a glaring lack of complaints in some areas. For example, we do not get complaints from female prisoners. I cannot believe that life is so perfect for them that there is nothing to complain about. There are also other types of issues that we would be interested in looking at.

Own initiative investigations will free us up from having to have an individual complaint and will mean that we can take a wider focus, because, when you investigate a complaint brought by an individual, the focus is, quite rightly, on that person and their outcomes. If we found something major in a complaint against, say, one NHS board, we could use that as a basis for investigating the issue rather than having to wait and hope that we get complaints about other boards, too.

The other side of the issue is that such investigations are much more effective resource-wise as well as impact-wise, because one small team of investigators can look at something that is likely to have much more of a systemic impact across a sector or a type of issue.

Could you talk a bit more about what legislation would be required to get to that stage? It seems, from how you have explained it, to be a worthwhile way to progress.

A change to our primary legislation would be needed. Given that so much legislation is being developed at the moment, it is not impossible that, for example, the work that is being done on the human rights bill might give us that power through another primary route. It is too early to say that that will definitely be the case, because the matter is still under consultation. However, the change cannot be made through secondary legislation.

That is very helpful.

It is useful to hear that there is a potential route. Is there anything other than the human rights bill that could result in your getting the powers in this parliamentary session?

That is probably the most likely route. The other bills that are being considered have a different type of impact that is probably less positive.

I will carry on the line of questioning about additional powers. If you had the power to carry out, say, a public value investigation, would there be any crossover between your work and that of the Auditor General for Scotland?

I do not think that there would be crossover, because the Auditor General would be looking at different things. Audit Scotland looks more at best value, whereas we look very much at service delivery. However, before you start any such investigation, you set terms of reference and look at what is already out there to ensure that you do not do something that somebody else is doing.

We have a different focus, so I do not think that there would be crossover. The work would, I think, be complementary.

The Northern Ireland legislation for own initiative investigations sets out quite clear criteria relating to when such an investigation can be conducted, to avoid that kind of situation occurring, so that could be built into the legislation.

Okay. You talked about the difficulty with the budget never being enough, taking on extra responsibilities, child-friendly complaints and a national whistleblowing office. What burden would any new powers or responsibilities—whether they related to public value investigations or taking complaints in any form—put on your office’s budget? What additional budget would be required to fulfil those potential new powers?

Own initiative investigations are quite interesting. The Welsh and Northern Irish ombudsmen are funded for very small teams—one has one additional investigator. I do not think that a specific funding model is needed. It may be that we could say that we would like an extra person, or we might hope to divert some of our investigative resource for complaints, because one would hope that an own initiative investigation would have a wider impact. It could have the opposite effect, of course; it could drive complaint numbers up.

We are funded quite differently from other ombudsmen in the UK. We receive funding through our corporate body, so we do not get any funding for contingency. There is contingency funding, though, and it was that funding that paid for our additional investigators for Covid recovery.

In relation to Niki Maclean’s point and your question about public value investigations, it is possible that we could make a business case for a particular investigation to show what the benefit of that would be. At this stage, however, we are more at the point of the principle, but we are not looking at huge teams of people in the same way as has been the case in relation to taking on additional functions.

I hope that, when we have the powers, we will be able to work with other organisations. We might be able to conduct investigations jointly with other bodies that already investigate issues in a wider sense. It will require some creativity to get the best value for the best output.

10:15  

Thank you.

Good morning. I am interested in the types of Scottish welfare fund cases that are being reviewed. For example, what are the most common reasons why a review comes to you? We have heard that there are relatively high uphold rates for community care grants and self-isolation support grants. Does that imply that local authorities are making mistakes or rushing their assessments of the welfare fund applications?

I will ask Niki Maclean to answer that so that I can give my voice a rest, if that is all right.

No worries.

One issue that local authorities raise is that the SPSO has more time to consider cases than they do, and I agree with that. In relation to upholding cases, we are sometimes able to gather more evidence. We conduct our work over the phone more than local authorities do, and it is really important to have direct contact with applicants. That has happened less because more people are moving online, but having that contact naturally means that you garner more information from the applicant than you might do at first or second tier. There are a variety of reasons for that, but the way that we conduct our operation means that we are able to get a fuller picture and, therefore, are more likely to uphold.

We and local authorities follow Scottish Government guidance, which is out of date. Periodically, we feed back when we think that something could be clarified. I understand that the delay is because the Government is waiting for the outcome of the review into the welfare fund. If it is not entirely clear what the guidance is saying, that can sometimes add time for us and for local authorities, or it might mean that something goes back to them. We have looked at the guidance, and we see that all local authorities have an interpretation of it. That is a contributory factor, as well as the issue relating to the first tier and second tier, as Niki Maclean said.

I am happy with that, convener. Thank you.

Good morning, and thank you for joining us. I have a couple of questions about whistleblowers. Specifically, why were so few cases received by the independent national whistleblowing officer? Do you have any thoughts on that?

Oh, I have lots of thoughts. When the legislation on that was established, we went live with whistleblowing right in the middle of lockdown, and that probably had an impact in the short term. Initially, we had quite a lot of inquiries, but a different pattern seems to be emerging now. We had our “Speak up” week with the boards and the NHS. We question whether the NHS has been promoting the whistleblowing process as much as it should be, which was one of the things that led to the “Speak up” week. Although the whistleblowing champions—the non-executive directors—are not in our jurisdiction, we have put that question to them as well.

It is not clear whether the issue is because of record keeping, although we do not think that it is. We are seeing numbers go up. Part of it is about the evolution—that is probably the best way of putting it—of building trust and confidence to speak up. We do not yet have enough information about whether more speaking up is happening without the need to whistleblow. We will not get a fuller picture until the next few months go by.

In the early stage, we handle our whistleblowing complaints slightly differently from how we handle our public service complaints. That is because we hear from potential whistleblowers that they want to be anonymous and do not want to be named, or that they do not have confidence or are not sure that they want to do it. It is a huge thing to do—however well protected a person is, it is a very courageous thing to do.

With public service complaints, if a complaint has not been through the local process first and is premature, we send it back and ask the person to go back to the public body. For whistleblowing concerns, we have introduced what we call a monitored referral. If an issue has not already been to an NHS organisation—it is usually an NHS board—we have a number of options. The extreme option is for us to investigate it in the first instance and, if the matter is significant and we think that there would not be a reasonable investigation or that there are other public interest reasons, we will look at it.

The majority of cases that we refer on are the monitored referrals. With the whistleblower’s permission, we send the matter to the organisation on their behalf. We remind the organisation of its responsibilities to protect the whistleblower and any other people from detriment and of its responsibilities under the whistleblowing standards. With some cases, we just refer them on, but we might refer others with a bit of direction. For example, if there is a particular concern about detriment, we might ask the organisation to tell us what measures it will put in place to protect the whistleblower. Such cases have been quite successful, because we have not seen many of them come back to us.

In order to see a gradual increase, we need to have some cases so that we can say, “Look—it is okay; it works.” We are just about to issue our second report. If we can get more cases that have an outcome, that will start to build trust and confidence. There is still work to do, however. Some of the work that Andrew Sheridan’s team will be doing on stakeholder engagement is about embedding those standards and reassuring NHS staff and others that it is okay to speak up and, if it is not okay, something will be done about it.

That is helpful.

One reason why the number has probably seemed low is that, to begin with, the team did a lot of baselining of how boards were engaging across the piece. That led to our having our speak-up week, in which we shared information and made sure that people were aware of what they should be doing. It was about getting a feel for where the levels were in each board by bringing them together in a network and chatting through it. Coming out of that, we are starting to see some data that shows that there is more awareness raising. We have provided resources, there are lots of topics online and there are speakers. We should see that filter through gradually. My team’s on-going engagement work in speaking to boards and directing them to examples of good practice or saying, “Here’s an anonymised case study that you can see and share,” will really help as we move on.

That is helpful. It would be good to have feedback on that. I take on board what you said about launching the whistleblowing system during the pandemic, but have you looked at whistleblowing systems in other parts of the UK and at whether there is learning to be had from them as well?

We engaged quite a lot with the National Guardian’s Office scheme in England and picked up things from it. Actually, “Speak up” week was similar to something that had worked well for that scheme. In the early days, its patterns were very similar to ours—there was a slow start, and then things picked up as confidence in the system grew. We also engaged with the Police Ombudsman for Northern Ireland, which takes whistleblowing concerns in the first instance.

We picked up as much good practice as we could but, procedurally, we do it very differently—and better, I think. Our system is good because it has a statutory basis, is inherently designed to protect whistleblowers and has a much wider definition of “whistleblower”. We have picked up good practice and we share, liaise and meet with other bodies but, in terms of comparisons, beyond the things that we have already done, there is probably not a lot more that we could pick up, process-wise.

The key thing is that complaints require a lot of detailed and empathetic conversation. I think that it was the Police Ombudsman for Northern Ireland who said that what whistleblowers come to you with is rarely what they are whistleblowing about. I hope that what we instil, through our work and through the work of Andrew Sheridan’s team at local level, is the need to listen and act, rather than spend lots of time angsting and analysing.

Yes, it is often a complex picture.

This is my final question. In the last session of Parliament, my colleague Margaret Mitchell brought through the Apologies (Scotland) Act 2016. What impact has that potentially had? Given the pandemic, its full potential may not yet have been realised, but I wonder whether that is making it easier for members of the public to receive an apology without having to escalate through complaints systems.

That is hard to answer because, inherently, through model complaints, we look at something in the first instance and try to respond quickly. A good apology is part of redress. The act probably has an impact, but that impact is hidden, because we ourselves are so apology focused, too. I am sorry that I cannot answer your question more fully than that.

As Rosemary Agnew said, we have refreshed how we deliver all our training, from good complaints handling to investigation skills. A big focus in that is on people apologising as soon as they realise that something has gone wrong or that something may be procedurally out of kilter. At the start of the sessions that we delivered last week, there was a big focus on bodies apologising for each individual point and not as a whole. That was about picking up issues and saying, “Actually, we see that this has gone wrong, and we apologise.” We were very much on the front foot with that in our support.

That is helpful. Thanks very much.

We have a couple more minutes, so I ask whether there is anything that we have not covered that you want us to hear, Rosemary. In your opening statement, you raised concerns about the increasing complexity of the legislative landscape and said that that could become more labyrinthine for users. Would you like to raise anything on that or on any other issue, so that we are aware of it?

I will touch on that and on the work that we are doing on child-friendly complaints. There are no statutory provisions in that regard yet, but we have been given extra resource to develop guidance that will sit with model complaints handling. The project manager for that is in Andrew Sheridan’s team, and we have very much taken a co-design approach. That brings me to the comment that I made about model complaints handling and the refresh. What has changed, since model complaints handling came in, is that there has been a greater focus on being rights based. From doing that work on child-friendly complaints, we will learn about taking a rights-based approach to complaints handling. That brings in all the things such as resolution and having a different type of conversation.

10:30  

We are well on our way on that. We have done the initial design work and are doing some drafting that will go out for consultation. That is a very positive experience, but we have a lot to learn about how we then look at model complaints handling generally, because we would like that to become the normal way of doing things. It was necessary and absolutely right that, in the earlier days of model complaints handling, there was a big focus on getting the process right. Apparently, before model complaints handling came in, one organisation had seven stages. We think that we are mostly there with the process. The rights-based approach brings in different concerns, on issues such as accessibility, how to make a complaint and how to raise an issue about service rather than make a complaint. That is quite exciting work for us.

The legislative and policy context is, however, a little more concerning. I will give you a feel of the things that will impact us—I need to refer to my notes or else I will forget them. For example, there is the mental health scrutiny assurance review, which follows David Strang’s review of mental health services, and we have worked with the Mental Welfare Commission for Scotland on the mental health law review. Broadly speaking, its conclusion was that complaints handling is okay but there are areas where we can improve it, particularly around accessibility. There is also Dame Sue Bruce’s independent review of inspection, scrutiny and regulation for the national care service, which is information gathering at the moment. It is unclear what the impact of that will be, and that is the difficulty: all these things are happening almost in isolation.

We are about to respond to the consultation on the Patient Safety Commissioner for Scotland Bill. We are supportive of the concept but, again, have concerns about how the various bills are joining up—or not—in the scrutiny landscape. There is the National Care Service (Scotland) Bill, on which we have given evidence to the Health, Social Care and Sport Committee. There is the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which is the foundation for looking at children’s rights and child-friendly complaints. The uncertainty with that bill is about when it will have effect, because it will be a huge ask of the public sector to incorporate that.

The concern is that all those things are happening when lots of other things are happening. There is also the proposed human rights bill. The outcome of that is unclear, but it has the potential to be significant for us, because it is very supportive of some of the things that we have said that we would benefit from, such as an own initiative approach. There is also the mental health law review. Those are just the ones at the top of our list.

The underlying point is that, although we keep on top of what is going on and look at how it impacts from a complaints perspective, we are concerned about the co-ordination of the impact, which is not obvious, on the person at the centre of this—where they go, who they go to and how it is made easy for them. In a nutshell, we have concerns about how all those things are co-ordinating, and we will continue to respond to each of the consultations.

Thank you. It is helpful to hear about the direction of travel for child-friendly complaints and about the complexity and your concern about the impact on the people who use the services. Thank you so much for coming in today—it was good to hear the evidence and to get clarity on some of the details.

I suspend the meeting for five minutes before we move on to our next item of business.

10:34 Meeting suspended.  

10:39 On resuming—