Public Services Reform (Social Work Complaints Procedure) (Scotland) Order 2016 [Draft]
Agenda item 5 is consideration of an affirmative instrument. As usual with affirmative instruments, we will be taking evidence later on from the Cabinet Secretary for Health, Wellbeing and Sport and her officials. Once we have asked all our questions, there will be a formal debate on the motion.
Before I introduce the panel on the record, I want to acknowledge the milestone that the committee has reached today: at this meeting, we will welcome to the committee our 1,000th witness of the current parliamentary session. I am sure that members will agree that witnesses play a vital role in the committee’s work. Committees might be the gateway to the Parliament, but we are nothing without those who are prepared to engage with us by giving us the oral and written evidence that informs all our work. We are proud of the level of engagement and anything that we have achieved as a result of our reports is to the credit of those who have engaged with the Scottish Parliament’s committee system.
Our 1,000th witness is therefore Fiona Collie, the policy and public affairs manager of Carers Scotland—I am not going to go on and say who is the 1,001st, 1,002nd and so on. I also welcome to the meeting Beth Hall, policy manager, health and social care team, the Convention of Scottish Local Authorities; Paul McFadden, head of complaints standards, complaints standards authority of the Scottish Public Services Ombudsman; Iain Smith, policy and parliamentary officer, Inclusion Scotland; and Maree Allison, director of fitness to practise, Scottish Social Services Council.
Given the time, we will go directly to questions.
I thank all the witnesses for their very interesting submissions.
I will start with a general question. As I understand it, the Scottish Public Services Ombudsman’s paper explains that the order will align the social work complaints procedure with the health procedure, which the SPSO already deals with. Perhaps the SPSO representative can confirm that. Will the two processes now be identical? After all, that seems to make sense in this era of integration.
Those who have concerns will also be interested in knowing whether the ombudsman process will lose anything. Will the range of issues that the complaints review committees currently consider still be considered? Will a more centralised procedure result in any loss as a result of the loss of the locality dimension to the current situation?
I can give you some general background information. For a number of years, since the Sinclair report, we have been raising concerns about complaints in the areas of social work and social care more generally where there have been multiple, complex routes for complaining and different statutory processes in place. With the approach of integration, there was a feeling that an opportunity might be missed to align the processes.
Again, over a number of years, we have been aligning complaints-handling processes in the public sector to produce a standard model procedure that has two stages with timescales and standard requirements with regard to governance and the handling of complaints. The exceptions to that have been in the areas of social work and health, as separate statutory schemes were in place under the Patient Rights (Scotland) Act 2011, the Social Work (Scotland) Act 1968 and various directions.
As a result of a commission by the Scottish Government, we have been working on the back of a Scottish health council report to bring the NHS complaints process into line with what is now standard practice across the rest of the public sector. That process is well under way, and the procedure will be in place for the NHS from April 2017. Complexity is therefore one element that we have raised.
The other area is, of course, the complaints-handling process in social work. The processes will align and become the same process, with the same standards. Crucially, from a complainant’s point of view, there will be a single process point of entry and one joined-up response. Those key requirements ensure that complainants do not have to engage with different agencies on a complaint spanning different services. We feel that that will ensure a very clear, simple and consistent process for people who are complaining about services in that area.
The second part of the order also dates back to 2008, when the Sinclair report recommended that the SPSO take on the role of the existing complaints review committees. From what we can see, it is almost universally accepted that the complaints review committees system has not operated effectively, and the proposal is to give the ombudsman a professional judgment role on top of the wider maladministration role that we have as part of our standard role. That is the role that the complaints review committees currently play, and it would mean that, in what is clearly an extension of our current remit, we would have the same role as the complaints review committees in that regard. The benefit of giving the ombudsman the professional judgment role is that it will align with the role that we have had for a number of years with regard to health complaints, which we investigate on the basis of clinical judgment.
Currently, we see complaints that cross over both areas. Such decisions are made by joint agencies, but we can look at judgments only in relation to their health board elements; we cannot look at the local authority elements. The proposals as outlined will mean that we can take a holistic look at those types of complaint and will allow a clear alignment with the integration agenda.
Do the other witnesses concur or take a slightly different view? I see that Iain Smith is anxious to come in.
The question was about whether the process might lead to a loss of locality issues from CRCs. I think that the general view of users is that the CRC system just did not work and did not deliver for service users, who wanted a review. Over the past few years, we have seen—and the committee has been heavily involved in this work—a number of pieces of social care legislation that provide a background of rights defined on a national basis. It therefore makes more sense for these issues to be addressed through a national complaints system to ensure consistency in how complaints are dealt with.
Such issues arise with the Social Care (Self-directed Support) (Scotland) Act 2013, the Public Bodies (Joint Working) (Scotland) Act 2014 and the Carers (Scotland) Bill, which has just been passed. All of them set out certain principles and guidance about the level of service that people should expect based on the rights and dignity of service users, giving them choice and control over participation in public life, and they all provide national guidance that is to be delivered locally. However, where that guidance fails to be delivered and where people’s choices or dignity are not properly respected, there should be a national complaints procedure to look at that and to ensure that the national principles that have been agreed by the Parliament and the committee are delivered to individuals.
11:15
I agree whole-heartedly with what Iain Smith has just said. If the SPSO’s role was taken in isolation, I do not think that the process would be clear. However, bringing in the two-part model complaints-handling procedure to make an aligned system will make it clear to carers and people who use services how they should make a complaint; how their complaint can be resolved and the timescales for that; and that they should follow exactly the same route in making a complaint about health, about social care or about an integrated service. That significant step forward will reduce confusion and enhance clarity for people who make complaints.
Our members were broadly supportive of the recommendations of the short-life working group that originally looked at the issue and which made its recommendations in January 2014. However, the statutory instrument before us does not go into the detail of how the new system will work, and our members have a couple of concerns about the proposed changes, principally around the alignment with the model complaints-handling procedure that operates in other areas of local government services.
Mr McFadden has just said that further work is being carried out to bring the complaints procedure in the health service closer to that procedure. Although we would welcome that as providing the consistency that Fiona Collie has just referred to, we are concerned because, whereas the current social work complaints procedure allows 15 days for the initial front-line resolution stage, the model complaints-handling procedure allows only five. We would like the 15-day timescale retained for that stage for the following reasons. First of all, in comparison with other local authorities service areas, social work is by its very nature more complex, in that it focuses on relationships that have begun to go wrong by the time things have reached the complaints stage. Secondly, the cases that lead to a complaint are often the more complex ones. We are therefore looking for assurances that the timescale of 15 days will be retained.
Our members are broadly supportive of the extension of the SPSO’s role to enable it to consider not just maladministration but professional judgment, but they have some queries or concerns about what professional expertise will be drawn on to fulfil that role and how the interface with the SSSC, which currently looks at professional judgment and malpractice, will work. We seek clarification on those points.
On the issue of a local versus national focus, I am aware that the Sinclair report highlighted the need for providers to be able to resolve complaints more, not less, locally. We would therefore like some clear thinking about what complaints resolution will look like on the ground, especially for more vulnerable groups, if we have a centralised procedure. Will people have the opportunity for a face-to-face hearing, perhaps with the support of advocacy services, or is it proposed that it all be done as a paper exercise? If there is to be a centralised face-to-face approach, what support will be available to enable people to participate in that?
Those are just a couple of thoughts on the issues that have come up so far.
As the professional regulator of the social services workforce, we consider any issues in relation to social workers’ professional judgment. Although we broadly welcome the simplification and streamlining of complaints procedures, we believe it important to work closely with the SPSO to try to avoid duplication or any unnecessary lengthening of investigation times for both the person who brings the complaint and the worker whose professional judgment might have been called into question.
The length of investigations has been mentioned a couple of times. Are there any statistics on that? How many cases are resolved within 15 days?
We do not have that information to hand today.
Okay. Malcolm, do you want to follow up?
That was all useful and interesting. Let me summarise what has been said. On the one hand, Paul McFadden has said that we have to bring the health complaints process into line with the other processes and that, basically, professional judgment is the issue that distinguishes social work and health from everything else. Is my understanding right, or are there other differences?
In terms of the ombudsman’s role, that is the key difference. As far as the local process is concerned, however, there are a number of differences.
I have to say that I was surprised by what Iain Smith said; he seemed more positive than he is in his written submission, in which he expresses concern that the SPSO’s decisions are not binding. In a way, Mr Smith, you would like it to go further.
Yes, we would. I was just answering the question that you asked rather than necessarily speaking to what is in our submission. Our view is that, for certain aspects of the decision making, the SPSO should have the right to overturn the local authority’s decision—
But that goes beyond any powers that the ombudsman—
But with the powers that the ombudsman will have over the Scottish welfare fund, they will be able to change a decision and impose an alternative one. Our concern is about what will happen with regard to many of the issues that we have highlighted, such as social work packages, if the ombudsman’s investigation determines that the social workers decided that X was required but the local authority decided that it only had the resources to provide Y. If the ombudsman says, “You should provide X,” and the case goes back to the local authority, which says, “No, we can only afford Y,” the service user will be no better off. We believe that, in certain circumstances, the ombudsman should have the right to say, “No, you must deliver service X, otherwise you will not meet the national criteria that have been established.”
On social care charges, for example, if a local authority is not taking account of disability-related expenditure in determining the contribution that a person has to make towards social care charges, and the ombudsman disagrees with what is happening, how will things change if the local authority decides not to accept the ombudsman’s recommendation? There is no right of appeal, so we do not believe that the approach is compliant with the European convention on human rights.
There are many other areas where that is the case, including self-directed support packages and portability. When someone moves from one local authority area to another, they might find it difficult to get a package transferred. There is a range of areas where we believe that the proposed powers do not go far enough.
The point about the ECHR is interesting, because presumably—
I do not want to interrupt what is a pretty interesting conversation, but Beth Hall has been trying to get in for a wee while, and she might add to our understanding.
Is that okay, convener?
Yes. I said that it was okay. [Laughter.]
I just want to pick up on three things. A colleague mentioned the welfare fund and the fact that the ombudsman can overturn decisions in that context, but I should highlight that the welfare fund is a very different thing. It is a national fund that local government simply administers. We do not set the budget—the money is ring fenced—and we have to follow national guidelines, including those on eligibility. With social work services, local government sets the budget, it is accountable to communities for how services are then managed and decisions are subject to local eligibility criteria. As you can imagine, we see any ability for the ombudsman to overturn those decisions as interfering with councils’ local democratic accountability.
Someone suggested that that equates to there being no appeal, but people are able to appeal decisions—for example, around SDS resource allocation. That is an internal process, but with regard to the wider complaints process, judicial review is, as I understand it, still available to people as the last resort. I do not have any legal advice on whether the judicial review element is compliant with the ECHR, but I imagine that Scottish Government colleagues will be able to advise on that.
I am a little bit concerned about that, given that we are trying to put in place something that allows us to seek a resolution for people who have made a complaint about, say, the allocation of a budget, a service that is not working effectively or someone’s professional judgment. We do not want people to have to go to judicial review. Not only is it expensive, but it adds an additional layer of stress to carers and people who use services. Whatever direction we go in, we must focus completely on seeking resolution at the earliest possible stage to ensure that when it gets to the point that the SPSO becomes involved we seek a resolution that is appropriate to everybody, even if that requires a compromise.
The most important thing is that we have in place processes that allow someone to take their dissatisfaction with a decision to an independent body for a review of whether that decision was reasonable. Since 2008, there have been various consultations on and discussions about how to fix a broken complaints system. If Government and Parliament wanted to look at an appeals system, we would need to have a whole different discussion.
We have said before that, if in taking on this role—which we think will give people an administrative justice route to challenge decisions that have been made on their social care assessments—we started to see that there was a need for something more, we would identify that need and report as such to Government and to Parliament. However, we are not aware of anything that would suggest that there is such a need at the moment. Clearly, it is not for the ombudsman to decide whether we should be taking about an appeal or a complaints route, but we feel that the proposals as outlined will maintain people’s administrative justice rights and give them a right to approach an independent body to assess whether its decisions were reasonable.
With the Scottish welfare fund, which is a very different scheme, we are essentially talking about an appeals route. The role that we have replaces a previous role played by the independent review service at the Department for Work and Pensions. As my colleague has highlighted, this is a national scheme to which clear national guidance is applied, and one difference, therefore, is that there is clarity at national level that might not exist in relation to existing social work services.
On Beth Hall’s point about local discretion, we understand that social work departments have discretion and that it is more difficult to have an appeal route around discretionary decisions. However, I must stress that a national framework has been created that puts behind social work legislation certain rights and principles that social work authorities have to abide by. It is in those cases where there is a failure to abide by those principles that people should have a right to review and appeal. If a person’s right to dignity has not been delivered because a local authority has decided that it cannot afford to provide overnight care for them, they should be able to challenge that without having to go through judicial review, which is cumbersome and expensive and requires a high level of failure for an appeal to be successful. A review through the ombudsman—or whatever body does it—would allow it to say that a local authority had got something wrong in a particular case and that it must change its decision. That is what we are seeking—it is not necessarily a judicial review process.
I suppose that the question then is: how would such an approach square with what Beth Hall has said about policies being set locally and about local democracy? There is not an imaginary decision somewhere else that will overturn that democracy. I suppose that that is what we are wrestling with.
Yes, but the issue is that legislation on health and social care, self-directed support and carers—the national care standards are coming through—sets principles that give service users the right to dignity, choice control, public participation and so on. Service users ought to have a system that ensures that those rights are respected by the local authorities that are providing the services.
11:30
This is quite an interesting and important area. If I understood the ombudsman’s written evidence correctly, it was suggested that you would not take up a local policy issue unless it related directly to the complaint of the person affected and that person specifically associated their individual problem with the policy area. I wonder how realistic it is for the individual making the complaint to be aware of local policy and understand the connection between the policy and their complaint.
If you were to notice multiple complaints arising in a certain area because of particular policy decisions, would you, as the ombudsman, reserve the right to challenge that policy position, or can such a challenge be triggered only if a member of the public makes the connection and draws it to your attention?
We look at complaints from the point of view of the impact on the individual of how their care needs have been assessed within the framework that Iain Smith talked about, which is legislation, national and local policy, and entitlement. Essentially, we are looking at whether the individual is getting access to their rights and whether the judgments that have been made in assessing their needs have taken account of those rights.
The element in our evidence on the wider resource decisions was designed to answer the question that the committee has raised—or that has been raised in evidence—which was whether we would be able to comment on larger resource decisions by a council. An example would be where a decision has been taken to close a day centre. Elements of professional judgment may have contributed to that decision, and the way in which the order is drafted would allow us to look at that. However, such decisions are made in the context of a wider range of factors, including user input, and local discretion, democracy and resource concerns.
In the submission we were trying to highlight that, if a person demonstrated that they had been impacted or that there had been an injustice or a potential injustice against them, it is probably unlikely—our experience in relation to clinical judgment in health is that it is unlikely—that we could look at specific judgments that had been made in such cases and comment on them.
With the greatest respect, you have almost repeated my question back to me. What I am suggesting, in general terms, is that it is fairly unrealistic that the person making the complaint would make such a suggestion. If I were to do a straw poll and ask people in the street about local authority policies, for instance, many of them would not be able to give a coherent account of local policy. I suggest that it is a bit of a stretch to assume that such complaints will be made so coherently—in an ideal world, perhaps.
We heard from Mr Smith that certain rights are pretty well described and inalienable. If, for instance, you were to receive a number of complaints in a particular locality that led you to believe that there was a policy problem, would you be able to analyse the overall situation and make recommendations with regard to that policy?
When a person brings a complaint to us, that individual usually brings a general description of the circumstances and the way in which they have been affected. They do not necessarily identify a particular policy that has had an impact on them. We go through a full process, in which we speak to the person to understand their complaint. We do that as a matter of course, and we try to unpick the underlying reasons. We look at the information given by the local authority in relation to the case, and we try to unpick whether there are issues in relation to it.
On the wider issue about a range of complaints in one locality or about one policy, we could certainly see any issues in the intelligence that we were getting or the learning that we were identifying, and if we did we would feed that back to the particular authority. As the legislation is laid out, we are an ombudsman that looks at the impact on individuals—that is the role of the ombudsman—and recommendations on an individual case will relate to the case. We could make recommendations that are related to the wider policy, but they would have to respect local decision making and discretion.
It is useful to be clear that the purpose of the social work complaints procedure is exactly that. It is about how individuals and their families experience the services and it ensures that, when it does not go as everyone would like it to, they have some kind of redress.
The procedure is not about examining local government’s policy and budgetary decisions at the macro level. The local authority is there to scrutinise the budget and its implementation through the members who have been democratically elected. That scrutiny is subject to further scrutiny through bodies such as Audit Scotland, and it can be escalated all the way up to the Accounts Commission, which has significant powers through the penalties that it can levy on local authorities if the implementation is not going as it should.
We must remember that the complaints process needs to be responsive to individuals. I accept that, if patterns emerge in those individual complaints, there needs to be further discussion and connections need to be made. However, as my colleague from the SPSO outlined, there is the ability to do that.
Beth Hall’s contribution was helpful because it was almost as if we were discussing two different things—a complaints process and an appeals process for resource allocation at the local level. My understanding is that the SPSO will step in to take on the powers and responsibilities that local authorities had previously and make sure that, within the resource allocation that is set at the local level and within the structures established for care at the local level, individual complainants will have their cases handled appropriately through the process.
I guess that some of our witnesses wish the SPSO to go further than that; some of the submissions make that argument. However, today we are scrutinising the handling of the complaints process. A good example of the crossover for the SPSO would be in the complaints that I have had about service delivery issues with Cordia in Glasgow. I hope that that is improving as a work in progress—to be kind to those involved. If a number of service failures occurred and vulnerable constituents were complaining to the SPSO, the process and structure of that service might be an issue for the SPSO, but would the Care Inspectorate be the partner agency to see whether the quality of service was fit for purpose more generally?
I do not have any concerns about the process passing to the SPSO. It has to happen under health and social care integration, and it would be crazy to look at the SPSO for only one part of the picture and go elsewhere for the other part. This just has to happen. My question is about the links with the quality of service more generally across the local authority or an integration board area. What do you see the links being in the future with the Care Inspectorate and the more general level of care? It would have a democratic responsibility to hold local authorities to account if they are in breach of the level of care that they should be providing.
In social work, we look at the broad-term assessment of care needs. Complaints about registered care providers and the delivery of care would go to the Care Inspectorate. It is the national body responsible, and it will continue to be so.
On linking up learning or looking at the assessment of what we see and how it links with what the Care Inspectorate sees in delivery, the order also contains provisions to allow us to share information with the Care Inspectorate and the SSSC, which will help us in providing information. Our role is to work with regulators but there are restrictions on the information that we can share about individual cases. The provisions in the instrument will make information sharing a lot easier. From an early stage, we have been keen that it should be as easy possible for us to feed back into the national regulator.
Are there other bodies that you should be sharing with? We have the SSSC and the Care Inspectorate. Who else might have an interest in having such information? I understand the fact that local authorities are democratically accountable, but there are checks and balances in the system. We mentioned two organisations that are part of those checks and balances, but should we add any other organisations? Do we have the right balance?
The Mental Welfare Commission for Scotland certainly looks at individual issues and how the two bodies will link together. Given that the Care Inspectorate is involved, too, it can be quite confusing for carers and users of services to know who to complain to or get support from if things are going wrong. I think that some clarity around the role of the Mental Welfare Commission in relation to that of the SPSO would be useful.
As no one else wants to respond, we will move on to Rhoda Grant.
I would like to get some clarity on professional judgment, which has been the subject of previous questions. I assume that it is the local authority’s collective professional judgment that will be reviewed, because if it is an individual’s professional judgment that is the issue, that will be picked up earlier in the complaints process. I assume that, if somebody’s professional judgment is way off, that will be an issue for the SSSC rather than the SPSO. Is that correct?
In general, the way that we work is that we look at the judgment and the actions of the organisations, and we report our decisions against the organisations. It is clear that we look at individuals’ judgments, but we are keen to emphasise that our focus is on the collective judgment of the organisation.
We have already committed to exploring further our interaction with the SSSC—we intend to develop the existing memorandum of understanding and so forth. We want to understand exactly when we might want to cross-refer when the higher threshold has been met in relation to the actions of an individual.
We have experience of working with regulators in other areas—the General Medical Council and the General Dental Council are obvious examples. Those arrangements have worked very well since we have had the powers in relation to health. We will work closely with our partners to make sure that we get things right.
We would certainly hope and expect that employers would make a referral to us at an early stage if any issues with the professional judgment of individual social workers were identified in the complaints process at an early stage. However, we anticipate that there might be cases in which the ombudsman identifies issues at a later stage. If that is the case, we hope and expect that there will be close working between the two bodies to ensure that those issues are dealt with as effectively as possible.
I would like to ask about hearings. I know that, with the SPSO, some of the process is a paper-based exercise that does not involve hearings, but if hearings took place, where would they be held? I know that constituents have expressed concerns to the SSSC about having to travel quite a distance to access hearings. If we are talking about people who require care services and who are therefore quite vulnerable having to travel to access a hearing, surely that would put pressure on them to withdraw their complaint, because they might not be able to get to the hearing. What support would be available to them to attend?
We will not hold hearings as a matter of course, as we do not think that that is necessary in relation to the complaints that we are talking about. However, we are quite clear that we have the power to undertake hearings—indeed, we have the power to go as far as to put people under oath, although we have never had to use it. We will hold a hearing when we think that that is necessary to understand the circumstances of the case and in the interests of fairness.
We will have to speak to Iain Smith’s organisation and other third sector organisations and users about how we will conduct those hearings. We have had some discussions on the issue in relation to the role of the Scottish welfare fund, which will come in on 1 April. We have had some helpful feedback from Inclusion Scotland members and users on that system, which will transfer over in relation to the process we are discussing.
If we assume that the order goes ahead, there will be a process of discussion on how it should be put in place, taking account of the needs—and respecting the dignity—of individuals in that context.
It appears that committee members have no other questions, so I will give Iain Smith a moment to cover any issues that were not mentioned in his organisation’s submission, and I will offer the other witnesses the same opportunity. We have time for a brief round-up, as we have just sent for the cabinet secretary, from whom we will take evidence next.
To follow up the point that Paul McFadden has just made, it is important that local authorities and the Government recognise that advocacy support will have to be available to service users who wish to raise complaints. I am not sure that it has been recognised in the financial memorandum for the order, but there will be costs associated with having an effective complaints system for both health and social care. That is important.
11:45One other point to make is that we are aware from anecdotal evidence that many service users do not wish to make a complaint about the assessments that they have received for social care packages. They are frightened that, if they do so, their packages might be cut further. It is important to bear in mind that they need advocacy support to give them the confidence to challenge decisions that they think are wrong. As I said, there is anecdotal evidence that people are concerned that SDS assessments, for example, are resulting in cuts in their packages and that, if they challenge them, they may be cut further.
Does any other witness want to put anything on the record on that point or any other?
I want to re-emphasise the point about advocacy and say that there is a real need for advocacy for carers. There has been a reduction in services across Scotland, and guidance is due to come out about developing new services. Advocacy for carers and for people who use services is vital, and we need to look at how to build a network across Scotland both to support the making of complaints and to resolve issues in the first instance.
I have two points. First, we want to see further work done to look at what the costs of the new system might be. In part, that will depend on the choices that the SPSO makes on physical hearings and where they would take place.
Secondly, we want the guidance on the new system to be co-produced with organisations such as Inclusion Scotland, carers organisations, the SPSO and COSLA. That would provide the opportunity to pick up issues that we have been discussing such as advocacy and how vulnerable people can be supported.
Have you done any work on the costs associated with reducing the 15-day time limit to five days?
No, we have not. As the time limit is currently 15 days for social work complaints procedures, we are looking for it to be maintained at that level when the new system comes in. The costs I was referring to were more around stage 3, which is the part that is changing significantly. We have talked today about there being a more centralised approach.
I was trying to get a weighting of the benefit to the person making the complaint against the impact of reducing from 15 to five days. Would there be a resource implication or additional costs? I assume that the five-day period was chosen because it is part of the model for how we expect public services to respond in the first instance.
Yes. Scotland is unique in that it has a standard process across the public sector. The aim of the five days is to empower staff to resolve things quickly, close to the point of service. We have achieved that in services: 80 per cent of local authority complaints are resolved at that stage.
We have flexibility, as we recognise that some judgments take a bit longer. We need to enable people to make judgments without having to escalate the issue unnecessarily. That flexibility exists already in relation to the community health partnerships. There have been minor suggestions from the working group, which we fully understand in the context of vulnerable social work users, that we will take account of.
On cost, it is important that the independent service is resourced so that it can be effective. One of the key things will be the recruitment of advisers, which we have in relation to health. If we are to make decisions on other people’s judgments, it is important, as Beth Hall said earlier, that we have access to solid, professional advice, and that would be part of the cost. That is something that we will work closely with the Government and others on.
I thank you all for your attendance today and your written and oral evidence.
I suspend the meeting to allow the witnesses to change over.
11:50 Meeting suspended.
We welcome, for the second time today, the Cabinet Secretary for Health, Wellbeing and Sport, Shona Robison, and her Scottish Government officials Mike Liddle, policy manager, integration and reshaping care division, and Victoria MacDonald, senior principal legal officer. We are expecting a brief opening statement from the cabinet secretary.
Thank you for inviting me to give evidence to the committee on the draft Public Services Reform (Social Work Complaints Procedure) (Scotland) Order 2016. There is a long history of discussion around the current system for social work complaints going back to the Crerar review in 2007 and the Sinclair report in 2008, which called for the streamlining of the complaints system.
Our draft order is fully in line with the Sinclair report’s recommendations. Our intention is that the changes that we will make will shorten the timescales that a service user faces when making a complaint and bring the procedure for making a complaint about social work into line with the procedures for health and other local authority complaints. In all those cases, the Scottish Public Services Ombudsman is the appropriate external body to investigate if necessary following internal consideration of the complaint. The order will extend the SPSO’s ability to consider discretionary decisions taken in the exercise of social work staff’s professional judgment.
During our consultation on the order, some respondents raised concerns that there may be an overlap of functions between the SPSO and the Scottish Social Services Council, which is the regulatory body for social work staff. The SPSO and the SSSC have a memorandum of understanding between the two organisations. That will be updated to ensure that there is a clear delineation of the roles of the two bodies. The order also allows the sharing of information between the SPSO and the Care Inspectorate and the SSSC where appropriate should something come to light in the handling of a complaint.
During the consultation and in responses to the committee’s call for evidence, some respondents highlighted the need for the SPSO to ensure that it has appropriate independent social work advice in reaching decisions about professional judgment. I confirm that, in the same way that the SPSO receives professional medical advice in its investigation of complaints into health services, it will ensure that it has professional social work advice in its investigations into social work complaints.
If the order is approved by the Parliament, the SPSO will work with stakeholders, including service user representatives, to produce a model complaints-handling procedure, which will be published before the SPSO takes on the social work complaints function in April 2017.
Thank you. Our first question is from Malcolm Chisholm.
The draft order will bring the social work complaints procedure into line with health and other local authority—I cannot read my own writing—complaints procedures. Am I right to say that, specifically, it brings it into line with health because of the professional judgment factor?
Yes.
Most people would say that, in an era of integration, the draft order is a good idea. However, the concern was raised in oral evidence that it might not be ECHR compliant, because the ombudsman would not be able to direct a local authority to follow the decision at which he or she arrives. Have you considered that dimension? Would you agree with that view? I presume that you would not.
On the first part of your question, we recognise the importance of ensuring that the complaints procedure is joined up from the perspective of the complainants. Health boards and local authorities must agree and set out in their integration schemes their arrangements for managing complaints relating to the delivery of services that are in the scope of integration. I hope that that gives some reassurance that there will be synergy and coherence.
You raised an ECHR issue. It is important to remember that the SPSO is fully independent of local authorities, so the criticisms that have been made about the links between complaints review committees and local authorities are being dealt with in these reforms. Ultimately, in the same way as for judgments on health, it is for the public body to implement, in a very public way, the recommendations. That is how it works for health and other services, and that is how it will work for social work. It would be unusual to say the least if a public organisation was to say, “Well, we know that that is the recommendation, but we will ignore it anyway.” That does not happen in reality.
I do not know whether Mike Liddle has anything to add.
I have nothing to add to that.
I understand your point, because in practice that is what happens. However, that concern was raised.
Your first point was interesting. The issue came up in another meeting that we had, and it is about what the ombudsman will do. I kind of assumed, when the integration joint boards were set up, that they would deal with complaints. Are complaints still going to be dealt with separately by local authorities and health? I think that you were touching on that in the first part of your answer.
The integration scheme has to set out the process by which a service user or anyone complaining on their behalf may make a complaint. The arrangements set out in an integration scheme do not alter the underlying position, which is that complaints are to be dealt with under existing health and social work complaints procedures. However, the health board and local authority must ensure that the arrangements that they have agreed jointly are clearly explained, well publicised and accessible, and that they allow for timely recourse. Of course, they must also ensure that people are signposted to independent advocacy services.
At the end of the day, all that a service user will want to know is that their complaint will be dealt with. How that is dealt with behind the scenes needs to be consistent and joined up. Both bodies must work together when something spans the services of both organisations. You can envisage that, in the world of integration, that might include services that are delivered jointly by both organisations that involve going into someone’s home. There must be synergy in the way in which complaints are dealt with, although legally they will be dealt with under the auspices of both organisations, as set out in legislation.
I will pick up on some concerns that were raised by the previous panel. COSLA expressed concern that, whereas there is currently a 15-day window in place for complaints at the most local level, the period will now be five days in order to achieve consistency nationally. We were told that there could be discretion in relation to that. How can we make sure that appropriate discretion is shown in practice?
I will take this opportunity to roll together a couple of questions. Currently, people without social work expertise are making professional judgments on people who have that expertise. We heard from the SPSO that it would seek to recruit people with social work expertise, and I want to know what level of oversight the Government will have to make sure that that happens.
Those were two concerns of two groups that support the reform. I hope that we can get some reassurance from you in relation to that on the record.
12:00
In the working group that was chaired by the Rev Dr Graham Forbes in 2013, one of the issues raised was whether to have a five-day or a 15-day timescale at the front-line resolution stage, and we listened to that concern. We have committed to looking at that when the model complaints-handling procedure is being produced. That work will be carried out by the SPSO in collaboration with the service users and other organisations. That issue has been raised consistently, and we expect that it will be addressed in the model complaints-handling procedure.
Officials from the Scottish Government will work with the SPSO and those other organisations to make sure that, when it comes to producing a good complaints-handling procedure for social work, the guidance is appropriate for service users as well as for local authorities.
Will relevant SPSO employees with substantial social work experience be involved in that process?
Absolutely. The resources that will be provided to the SPSO to enable it to carry out those functions will be sufficient for it to take on social work professionals to ensure that there is good professional oversight of any issues raised. There will be social work professionals working with the SPSO.
My final question is a reiteration of one of the questions that I asked in the earlier session in relation—not for the first time—to the fact that, whenever there is a complaints process, the theme very quickly turns to appealing decisions that are made by local authorities. MSPs are lobbied on that in relation to other pieces of legislation.
Local authorities make financial decisions, which I may or may not always agree with, to direct their resource allocation towards providing services and addressing need. Rather than looking at the overall allocation, the complaints process will look at how people go through that system. However, if there is a service failure for individuals because not enough care is provided, the SSSC and the Care Inspectorate might have something to say about that. I am pleased that information-sharing arrangements are in place.
Fiona Collie suggested that the mental welfare foundation may also be a relevant body. Will you keep under review how we can share that information as much as possible, putting those important checks and balances in the system?
Yes. One of the most important aspects of a complaint is how the organisation learns from that complaint and improves how it does things. You are right that it is very important that the dots are joined up between the SSSC, the Care Inspectorate and, indeed, the Mental Welfare Commission. If information comes to light during the process of a complaint that may have wider implications—whether for the conduct of individuals or the service more widely—it is very appropriate that those organisations can take that information forward.
In the health service, there are a number of routes to that learning. There is Patient Opinion, for example. If something were raised in Patient Opinion that could be of particular concern, we would expect that it would be looked into, particularly if there were issues of concern for individual welfare.
One of the most important aspects of this change is bringing the organisations together. I understand that, at the moment, they are not allowed to share any information except in certain circumstances. Victoria MacDonald can explain that further.
At present, a threshold must be met before the ombudsman can provide information to other organisations such as the SSSC or the Care Inspectorate. The purpose of the amendment in this order, and the amendment to the schedule, is to allow it to do so in a wider range of circumstances that it thinks are relevant to those bodies’ functions.
It is the Mental Welfare Commission, not the mental welfare foundation, of course—I got that wrong. You may take a view about whether that is an organisation with which information should be shared to a greater degree, as appropriate.
It is not explicitly listed in the provisions, but it is something to which we should give consideration.
I do not think that that came up in any of the consultation responses in the quite extensive work that was done. I am talking off the top of my head, but I suspect that it has to do with the nature of exactly what role the Mental Welfare Commission has in individual cases, as compared with the role of the Care Inspectorate and the SSSC. There is nothing to prevent that from being done in a subsequent order, if appropriate, but I am not aware that it has come up in any of the consultation to date.
That is pretty much my final question. I just wanted to ensure that you keep a weather eye on such things as guidance and regulations and that you update things as appropriate. It is not job done, but it is transition made, and that will have to be followed through on an on-going basis.
We will definitely continue to monitor that.
I have a couple of detailed points, but first I have a strategic one, about the national care standards. How important are they in providing points of reference for how a service is delivering? It was in 2011-12 that the committee recommended the review of national care standards. When will they be in place? Will they be in place before 2017, when the order is in operation, and how important will they be to what people can expect in terms of delivery on the ground?
Yes, they are very important, and it is my understanding that they will be in place in that timeframe. There is synergy there, as I recollect, but I will confirm that. That backdrop of the standards that are expected will be an important reference point for service users and the SPSO. I will get a note to the committee to confirm the timeframe on that.
I appreciate that.
I have a question on the detail about allowing five or 15 days for complaint handling. We are focusing on timely resolution, and the five-day limit meets that requirement. As MSPs, we know that that can be very important indeed to ensure that something does not become a full-blown complaint and that requirements are satisfied. That is an important element. At the next stage, what can meaningfully be done to ensure that, in that five days, advocacy can be put in place so that the individual is fully aware of their rights and of the local council policy relating to the complaint, and can be supported in their complaint? Is it realistic to expect all that to be put in place in five days and that the complaint can be handled and dispatched efficiently, or will that become a problem in itself? If we are setting an unrealistic five-day target, we will get breaches and people will complain that they have not been heard within five days. I am thinking about the detail and the practicalities there.
I have one final question, which I might as well ask now. If a complaint concerns a social worker’s professional opinion, how do we ensure that we can get the appropriate person involved at that very early stage—someone with the skills to review the professional opinion that has given cause for complaint?
On the final point, there is good experience of doing that in the health service. When there is a health service complaint, the ombudsman is now well experienced in bringing in the right expertise to provide the level of advice that is needed. Essentially, this will be the same. It might take a little bit of time to build up those contacts, but I imagine that there is a good template that can be applied to social work services, where there is a big range, from services for children to services for older people and people with learning disabilities. The expertise that is required to give advice on those services will be a bit different. I assume that the ombudsman will have that bank of expertise to draw from.
I understand your concern, but I think that five days may be a challenge for someone with additional support needs who may need intensive advocacy input to take a complaint forward. Five days should still be the aim, but the process should be done properly, making sure that the person’s concerns are fully expressed. There is a balance between trying to deliver it in five days and giving the person the opportunity to express their complaint properly.
It is important to be clear that the five-day period is for the front-line resolution. At the following stage, a senior manager would look at the complaint. The focus is on getting that right so that the change can be made at the very first stage. I know that it is more a matter for local authorities, but we will provide the SPSO with sufficient funding to ensure that it has advocacy support for people who come to it.
Advocacy support, and the expertise.
So, to meet the requirement of five days in the legislation, we just need to acknowledge the complaint and say that it is being investigated. Are you saying that that would meet the requirement?
No, we would try to resolve the complaint at the first stage wherever possible. We would aim to resolve a complaint in five days to start with, but there would be the possibility of extending that to 15 days if the local authority or the complainant need additional time.
In circumstances where the complaint involves somebody with profound additional support needs, it may be more appropriate to take that extra time. Ultimately, it is a matter of judgment.
I pick up from you that people with additional support needs would get advocacy. It may be that people who put in a complaint are quite vulnerable. People who receive support services would probably also require advocacy. Is it built in that the complainant would have access to advocacy throughout the process—from the appeals process to the process with the SPSO?
My understanding is that advocacy is available for anybody who requires it. I do not think it is for defined cases.
No, not that I am aware of.
My understanding is that it is self-selecting.
That is my understanding.
If somebody feels that they need support when making a complaint, and they ask for advocacy, they do not have to fit into a particular definition. By and large, they determine themselves whether they require that advocacy. We have to monitor the process to make sure that it is adequate. I am sure that the SPSO will keep us fully informed as to whether it feels that the resources meet the demand. We will have to monitor that as we go along, but my understanding is that it is self-selecting.
If hearings are required, more resources might be needed to get the hearings to go out to people, rather than to have people travel to the hearings. It can be quite distressing for people to go a long way from home and stay overnight, as well as going through the complaint process.
Again, I am sure that the SPSO will judge those things on the basis of the needs of the individual. For example, if somebody has limited mobility, it may be absolutely right that it would go to the service user, rather than the service user being expected to go to a central point such as the SPSO office. That is my understanding of the situation.
As there are no other questions, we move to the formal debate on the affirmative Scottish statutory instrument on which we have just taken evidence. I remind members and others that members can discuss issues with the cabinet secretary but should not put direct questions to her during the formal debate, and officials may not speak in the debate. I invite the minister to move motion S4M-15465.
Motion moved,
That the Health and Sport Committee recommends that the Public Services Reform (Social Work Complaints Procedure) (Scotland) Order 2016 [draft] be approved.—[Shona Robison.]
Motion agreed to.
12:16 Meeting suspended.National Health Service (General Dental Services) (Scotland) Amendment Regulations (SSI 2016/53)
Under item 7, we will deal with two negative instruments.
There has been no motion to annul the regulations. Members will be aware that the Delegated Powers and Law Reform Committee has commented on drafting errors in the instrument, and the Scottish Government has confirmed that it intends to lay a correcting instrument early in the new session.
As members have no comments, do we agree to make no recommendation?
Members indicated agreement.
Personal Injuries (NHS Charges) (Amounts) (Scotland) Amendment Regulations 2016 (SSI 2016/59)
There has been no motion to annul the regulations, and the Delegated Powers and Law Reform Committee has not made any comments on the instrument.
As members have no comments, do we agree to make no recommendation?
Members indicated agreement.
As previously agreed, we now move into private session.
12:18 Meeting continued in private until 12:25.Previous
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