Official Report 347KB pdf
Scottish Public Services Ombudsman Act 2002 Amendment Order 2016 [Draft]
Agenda item 2 is consideration of an affirmative instrument. As is usual with affirmative instruments, we will have an evidence-taking session with the minister and his officials. After all our questions have been answered, we will move to the formal debate.
I welcome to the meeting Jamie Hepburn, the Minister for Sport, Health Improvement and Mental Health, and the following Scottish Government officials: Brian Nisbet, senior policy officer, health and social care integration directorate; and Clare McKinlay, solicitor, legal directorate.
I believe that the minister wishes to make a prepared statement.
It will be a short statement, convener.
Thank you for the opportunity to say a few words about the draft order, which amends the Scottish Public Services Ombudsman Act 2002 to add integration joint boards, which have been established under the Public Bodies (Joint Working) (Scotland) Act 2014, to schedule 2 to the 2002 act. That will have the effect of including integration joint boards as listed authorities for the purposes of the 2002 act, which means that any complaints raised against integration joint boards can be dealt with by the ombudsman.
In addition, the complaints procedures used by IJBs must comply with the principles set out by the ombudsman. That will help to ensure that as we approach 1 April 2016, by which time all integration joint boards will have taken on their responsibilities, we will have robust complaints-handling procedures in place for all of those boards.
The right to seek redress from an external and independent ombudsman is, we believe, an important right for the public and by proposing this amendment to the 2002 act to include integration joint boards, we are seeking to make that possible in relation to the planning of integrated services. Committee members will wish to note that the order does not take forward any new policy, as it is needed simply as a result of wider legislative changes with regard to the integration of health and social care.
I am happy to take questions from committee members.
Thank you, minister. We move to questions from members.
People are interested in the accountability arrangements for integration joint boards. Before anyone had recourse to the ombudsman, they would have to exhaust the complaints procedure. Is the complaints procedure for IJBs completely contained within and restricted to the IJB—presumably in connection with the lead officer—or will the national health service board and local authorities have any role in that respect?
We need to be distinct about what we are talking about. As the exercise of functions on the ground and front-line services are already covered by existing complaints procedures for health boards and local government, they will, as we are all aware, already be dealt with by the SPSO. Indeed, I am sure that we have all had constituents contact us at various times about such matters.
If we are talking about the planning of functions through the IJBs, yes, the boards will have their own complaints procedure. Indeed, we have issued guidance to that effect, making it clear that the procedure has to be compliant with the wider SPSO complaints principles. All bodies that have such responsibilities must have a complaints procedure and adhere to it; now that the order adds IJBs as a distinct kind of body corporate to the list of bodies that the SPSO has oversight of, people can complain to the SPSO, too.
Most people are more likely to make a complaint about the delivery of a service rather than the way in which it has been planned. Are you saying that, as far as the delivery of services is concerned, there would not be an issue with complaints going to the IJB instead of going simply to the local authority or the health board?
In essence, those arrangements are already in place. The order relates more to how the planning of integrated functions is delivered.
That is quite an interesting answer, but I think that it will probably add to people’s confusion about the accountability arrangements. At a meeting that I had yesterday with a particular body, the question of who is ultimately accountable was precisely the one that was raised. Are you saying that the health board or the local authority will actually be accountable for the services that, as far as I had understood it, will be delivered through the IJB? I thought that we were trying to get beyond those distinctions when it came to integrated services.
That is about the delivery of the actual function. If there is an issue around the planning of integrated services, the integration joint board will be accountable and have responsibility for that, and I hope that people will understand that. I ask Brian Nisbet to comment further on the matter.
That is the case in relation to the planning and strategic commissioning for which the IJBs are responsible. Adding them to the 2002 act will allow complaints to be made about the commissioning and planning function; however, the issue of service delivery in relation to the NHS and social work services will still rest with the local authority and NHS complaints procedures.
That is interesting. Thank you.
What about services provided by, for example, the third or voluntary sectors? How would complaints against them work?
Again, I suspect that that will come down to who has commissioned the services and who has ultimate responsibility for them. The commissioning body would be the body to which a person would complain, and it is incumbent on each body to act appropriately. Indeed, we have issued guidance on that matter.
Integration joint boards are subject to that process, and health boards and local authorities are already responsible in relation to their functions; they come up with their own complaints procedures that comply with the broad principles to which the SPSO operates, and they would need to take account of any external body that they have commissioned to deliver services as part of that process.
We are simple souls here, so I do not think that we expected any controversy on this issue. However, it would be helpful if Brian Nisbet, Clare McKinlay or you, minister—it does not matter who—could give me an example about what the change adds to the existing process. What would the process look like if someone made a complaint about the planning of a service rather than its delivery? I am genuinely struggling to understand what will be added to the process.
Like you, convener, I do not view this as a controversial matter. In fact, it is quite straightforward, given that through the Public Bodies (Joint Working) (Scotland) Act 2014 we have established integration joint boards across the country as bodies corporate. Those bodies exist in law and exercise a public function. All we are seeking to do with the order is to ensure that a person who wishes to make a complaint about how those boards have exercised that function has a right of redress. They have a right to complain to those bodies in the first instance, and if they are dissatisfied with how the complaint has been handled, they can go the ombudsman to seek further redress.
You are asking me to speculate about what the process might look like, convener. Obviously it is hard for me to say, as it is a theoretical matter. I suppose—without wanting to be specific about it; I do not want to invite complaints—that if a person were to feel that an integration joint board had not followed the processes that it should have in planning and co-ordinating integrated functions, the individual in question might use that as the basis for complaining to an integrated joint board. What that might be about could be different to different people. Ultimately, the matter would be subject to the complaints procedure and for the ombudsman to look at. The ombudsman could uphold the complaint or dismiss it on the grounds that the integrated joint board had followed the proper process.
I, too, seek some clarity. If a person had a complaint about a function carried out by the joint board on behalf of, say, local government—it could be about the care someone had been provided with at home—would they complain through the integration joint board or to local government, the statutory provider of the service? Would they have to complain to both before they went to the ombudsman?
I do not believe that they would have to complain to both. Obviously, the situation is a hypothetical one, but I suspect that you are referring to front-line service delivery. I make it clear that, in the example that you have given, that would be the responsibility of local government. Equally, however, it could be the responsibility of the health board.
It would not be the joint board’s responsibility.
Not unless the complaint was about the planning or commissioning of services. Brian Nisbet can clarify the position, if needs be. Do you have anything to add, Brian?
Rhoda Grant makes an interesting point. The central point is that any complaint, whether it be about service delivery or planning, must be dealt with appropriately. If it is a service delivery matter and the complaint is made to the local authority member of staff, that person should pick it up. However, if the complaint is about a planning matter, the complaint should be made to the integration joint board.
So the complaint would go through the employer. It might not be about a member of staff; it might be about the way in which a service is provided. In that case, it would go through whoever employs the workforce.
10:00
Putting it in the simplest way, Ms Grant, I think that if you sought to assist a constituent with a complaint that might ultimately go to the ombudsman and which relates to the functions about which you are talking, you would find that the process would not be dramatically different from the one that you would go through just now.
But who would I write to?
Mike MacKenzie wants to ask a question.
I want to tease out a bit of clarification in an effort to be helpful. Am I correct in assuming that if I, acting on a constituent’s behalf, were to write to a local authority or health board on a matter that actually related to the integration joint board, the local authority or the health board would write back to me saying, “Dear Mr MacKenzie, we cannot properly address this complaint so we suggest that you take it to the integration joint board” and vice versa? Therefore, there would be no real problem here, aside from the cost of a stamp or sending an email, or confusion about the right agency that people should take their complaints to.
You are being helpful, Mr MacKenzie; indeed, if I can say so, you always try to be helpful. In essence, what you say is the case.
We have issued guidance on this matter. The various bodies involved have to be clear about their particular roles. I might be giving a hostage to fortune here, but I suspect that most complaints will continue to pertain to front-line delivery. The processes already exist for such complaints to be addressed, as they are already covered by the Scottish Public Services Ombudsman.
However, now that we have created integration joint boards, it is possible that people will want to complain about the way in which they discharge their functions, which are about the planning and commissioning of services, and we have to give people the right to make a complaint first to the body directly and ultimately, if need be, to the Scottish Public Services Ombudsman. My expectation and that of the Scottish Government in general is that any process that involved a body getting back to a complainant to say that they should contact another body instead would be expedited to ensure that any complaint could be taken up with the relevant agency and, I hope, resolved satisfactorily and quickly thereafter.
We do not want things to be complicated, but I think that they might be getting that way.
This has been a really interesting discussion but to be honest, minister, I am surprised by what you have said. My understanding was that we were getting beyond the distinction between health and local government in a range of services, and I had assumed that if I or a constituent had a problem about the delivery of social care, I would write to the chief officer of the integration joint board. To say that the joint board is responsible for planning and that it is then up to the separate bodies to deliver the service dilutes the concept of integration. I put it to you that it would be more appropriate if the integration joint board also dealt with complaints about the delivery of the services for which it is responsible.
We are talking about two separate things: on the one hand, you are talking about delivery while, on the other, we are talking about a complaints function. Our hope and our aspiration are that complaints will be few and far between, but we are all aware from our constituency postbags that complaints come up now and again and have to be dealt with.
You are right to say that the delivery of functions should be increasingly integrated, but we are not getting rid of health boards and local authorities as a result of integration. Those bodies are still entities in their own right; they continue to exist and to be involved in the delivery of the services. If a complaint is about a particular element of the service and a function that they should properly have exercised, it is right that, in the first instance, they be responsible for responding to the complaint. The approach of bringing the two worlds of health and social care closer together will, by its nature, lead to better service delivery and, I hope, to fewer complaints on that basis.
That is interesting, because your approach throws a new light on the whole issue of accountability. It is almost as if you will still be able to market whatever is delivered by this body as the responsibility of health or local government for the purposes of complaints. I presume that that relates closely to the issue of accountability. However, although I find the whole conversation interesting, I have to say that I am no wiser about accountability than I was at the beginning.
With the best will in the world, I think that one could be less clear about this. You could justifiably say to me that, if we were not doing what we are doing today, accountability would be a lot less clear, because we would have created an entity that ultimately had no proper complaints procedure and would not be subject to oversight by the Scottish Public Services Ombudsman. What we are doing today enhances accountability.
My point is that I thought that it would be accountable for the delivery of services as well as the planning of services.
That reminds me that we should also point to the targeted consultation and the ombudsman’s favourable comments about the order before us. Is that correct, minister?
My understanding is that everyone who responded the consultation, including the Scottish Public Services Ombudsman, was in favour of what we are taking forward. Indeed, the Delegated Powers and Law Reform Committee has no concerns about the order.
As members have no other questions, we move to agenda item 3, which is the formal debate on the Scottish statutory instrument that we have just taken evidence on. As usual, I point out that members should not put questions to the minister during the formal debate and that officials cannot speak in it.
Motion moved,
That the Health and Sport Committee recommends that the Scottish Public Services Ombudsman Act 2002 Amendment Order 2016 [draft] be approved.—[Jamie Hepburn.]
No member has indicated that they wish to speak in the debate, and I presume that the minister does not want to say anything further.
No, convener. I think that we have covered the matter in what has been a very useful discussion.
The question is, that motion S4M-15254 be agreed to.
Motion agreed to.
I suspend the meeting briefly to allow the witnesses to leave.
10:07 Meeting suspended.Next
Petition