Scottish Public Services Ombudsman Annual Report
I move us quickly on to agenda item 3—we can just about still say good morning. The committee will now take evidence on the 2007-08 annual report and the work of the Scottish Public Services Ombudsman. We apologise for running behind schedule and are aware of the time pressure that Professor Brown is under.
I welcome the witnesses: Professor Alice Brown; Eric Drake, the director of investigations; and David Robb, director of policy and development. I give you the opportunity to make introductory remarks, on the basis that we are all aware of the time constraints.
Professor Alice Brown (Scottish Public Services Ombudsman):
I will keep my remarks brief. The committee has already received a copy of the annual report and my briefing paper, which covers the key points.
We are pleased to have the opportunity to appear before the committee to discuss our annual report and receive feedback. It is particularly important for me, as this is my last appearance before the committee in my capacity as ombudsman. As you know, I demit office at the end of March this year, after six and a half years in post. It has been a tremendous honour to be the first Scottish Public Services Ombudsman, and I would like publicly to thank my staff for all that they have done to support me and to develop and improve the service that we provide.
Much has been achieved since the office was created in 2002. We have been successful in delivering the Parliament's aspiration for a one-stop shop and a modern complaints-handling body. I have said in presentations to Parliament and elsewhere that Scotland and Scotland's parliamentarians have very much led the way. Our scheme is a model from which others in the UK and across the world have learned, as was recognised by the Cabinet Secretary for Justice at the annual meeting of the British and Irish Ombudsman Association in 2008.
There have been major changes during my time in office, first with the merger of the predecessor ombudsmen's offices and the on-going reviews of office-holders. There has been an Audit Scotland review, the Finance Committee inquiry, the Crerar review, the Sinclair complaints handling action group's work and now the Parliament's own review of Scottish Parliamentary Corporate Body-supported bodies.
Our approach has been consistent, in that we have supported the extension of the one-stop shop philosophy and the aim to build as simple and accessible a scheme as possible. In our submissions, we have also suggested key principles on which the future design of the governance framework of Scotland should be based. We have also explored the potential for greater sharing of services between office-holders.
Looking to the future, I believe that more can be done, both in continuing to improve our service and in responding to the new challenges and the potential extension of our role following the Parliament's review.
If I have any regret, it is perhaps that, having established the ombudsman's office, the Parliament has not engaged with us as positively and effectively as it could have. That is understandable, given that there were many demands on the time of members of the new Parliament. However, ever since Sweden appointed the first ombudsman in 1809—200 years ago—ombudsmen have been an important tool for Parliaments seeking to hold Governments of the day to account. There is scope for MSPs to see the office as a resource and to use the evidence from our investigations to do that.
I know that the committee heard evidence earlier on the important issue of homelessness. That reminds me that one of the challenges for my successor will be to continue to make the office more accessible to those who encounter major problems in their lives and depend most on public services. I wish my successor well in taking that and other issues forward when she or he takes office.
Three of the members of this committee will be involved in the discussions about choosing your successor, who will, I am sure, have quite a task in following your example.
The committee pursued the issue of housing earlier. We noticed that your briefing paper refers to a significant number of inquiries, premature complaints and concerns about social landlords, which indicates that there is a wee problem. Did the housing allocations policy feature highly in the inquiries?
A percentage of the complaints that we receive will concern that policy—I can send the exact figure to the committee. In fact, we can break down any of the headings in our briefing paper if that would help.
We get a range of complaints, the largest category of which tends to be repairs. People often come to us too early with those complaints, partly because of frustration. They will have raised the issue with the body that is responsible for carrying out the repair but the repair will not have been done, and they will come to us because they think that we might be able to expedite matters. In those cases, rather than open a complaints form, we will telephone the body concerned to say that someone has approached us with a concern and ask what is happening with the repair and whether something can be done about it.
That aspect of our work does not necessarily register as a complaint, and a full investigation would not necessarily come to Parliament. However, if someone contacts our office, we do what we can there and then to sort the problem if a telephone call from our office might unplug a blockage in the system.
Can you elaborate on your concern that Parliament has not fully used the ombudsman's office during your term?
The office has a wide jurisdiction, and we cover all sorts of complaints about public services and policy, such as health, education, transport and so on. We have the opportunity to meet the committee once a year, and we value that. Each time we have visited the committee, it has brought up different issues depending on points that are of specific interest at the time. However, it is frustrating that that is the main opportunity to engage with parliamentary committees on issues that come out of the reports. Given the range of the office's jurisdiction, our annual report is limited to summarising and generalising, which means that members cannot get at the richness of some of the issues.
For example, we have appeared before Parliament's health committees in the past, but we would like the opportunity to do that more regularly to discuss issues such as continuing care. Another example of the issues that we hear about is the difference in services that people receive once they move from being a child to an adult or from being under 65 to over 65. Big policy issues often emerge from individual complaints, and it would be useful to share information. That is just one illustration. Another is planning: we were slightly surprised not to be called when Parliament was looking at the planning system, given that it dominates much of our work.
The situation is understandable, given the time pressures on parliamentarians in a relatively new Parliament. We will do what we can to make our material more accessible to the Parliament. Members are probably aware that we hold regular events in the Parliament for MSP staff and officials, and we produce a monthly commentary that summarises the materials of all our investigations, because a lot comes up each month. One MSP suggested that we target those commentaries on a more regional basis, and we will try to follow up that suggestion so that each MSP gets a clearer focus on what is happening in their area in local government, health and so on. We can do things to help, too.
I will hand over to my successor a hope that he or she will be able to engage with the Parliament as effectively as possible. Remember that our office is a creature of the Parliament and that, with the committees, we are part of the mechanism for holding Government to account, whatever political party it might be. We are a resource, and we have at our disposal lots of information that members might find helpful. Members mainly get our investigation reports, but we carry out a range of other activities. We are looking at ways in which we could summarise that work. At the moment, the legislation places us under confidentiality restrictions, and we welcome the review of office-holders because we hope that it will mean a review of the legislation. That is long overdue, and it might close some of the gaps and reduce some of the anomalies.
That was a long answer, but I hope I have illustrated some of our concerns. I could give you illustrations from right across the policy framework. If our role is extended further following the Parliament's review, there will be even more need to engage with Parliament on the issues that arise.
It would be great if you could add to your legacy and bring some of that about. However, in the past, we have issued calls for evidence on, for example, planning. It might be that a small organisation does not have the capacity, but I do not recall receiving a submission on planning, or other areas, from your office. In saying that, I support more proactive engagement because the office has something to bring to the table in our evidence taking.
Professor Brown, will you say a little about how you have interacted with the public and us to promote understanding of your role? You mentioned the fact that Sweden has had ombudsman positions for 200 years, but we have not had them for very long. I get the feeling that there are still some misconceptions as to what you are about.
That is an excellent question. When the Parliament created the one-stop shop, one of its aims and aspirations was to increase understanding of the role and of the things that ombudsmen can and cannot do. The latter is just as important because people often think that we can overturn decisions—say, planning decisions—although we cannot if the decision has been reached appropriately.
There is a challenge and a tension: resources go into raising public awareness, but the main resource must be used in handling the complaints that come to the office. We raise awareness in a number of ways. We produce leaflets that are, we hope, as understandable to the wider public as they can be, and we produce specifically targeted leaflets on, for example, housing issues. We have a housing newsletter and special leaflets about how to raise complaints about planning and so forth. In addition, we must engage effectively with other organisations that link most directly with the public. That is important: there will never be huge resources in an ombudsman's office, so we must work with others.
The key area is in front-line staff delivering the service in the first instance. Parliament was aware that that is important and wrote into the legislation that it should be written into the documentation of service deliverers that people have the right to approach the ombudsman. From the start, the Parliament ensured that the ombudsman is on the agenda and that information about us is given out. We ensure that front-line staff are aware of our role so that they can convey the right messages to others. The promotion operates at lots of different levels in an organisation.
We try to work effectively with advocacy groups. The committee heard from Shelter earlier, and we produced a leaflet with Shelter that focused specifically on housing options. People use Shelter, Citizens Advice Scotland and Consumer Focus—I spoke at Consumer Focus yesterday—and those organisations are much more likely to interact with a wide range of members of the public. If the organisations are well aware of our office, they can pass on information. We have to operate at lots of different levels and through different media—printed material, websites and so on—to reach different groups. It is a huge challenge for a relatively small office with relatively modest resources. The convener referred to resource restrictions, and the main restriction for members of staff in responding to all the different things that the Parliament is engaged in is time. We have to prioritise the work that we can respond to most directly.
I hope that I have answered your question. There are lots of different ways in which we try to raise awareness of our role, but a lot could still be done. We look to good practice elsewhere for possible mechanisms, such as having roadshows in different parts of the country. Awareness raising is a vital part of our work.
People are often disappointed that we cannot do something for them because the legislation does not allow us to do it. That is another story, although we want to reduce the number of anomalies in the legislation, which can often be ambiguous about whether we can do something.
All of that work is on-going. The word ombudsman does not trip off the tongue, but we now have a brand name that is recognised. We are seeing evidence of that because of the media attention on our work.
You have kind of answered my next question, which was going to be about what the ombudsman will do in the future. You cannot decide people's policy for them, but have you considered the consultations that develop policy?
Yes. We often get complaints about that, especially when a consultation is on a highly contentious issue such as the closure of a school or hospital. We explain to people that we may not be able to do anything about the eventual decision, as it is made by democratically elected members, but that we have a role in the process. One of the key things that we ask our investigators to do when they receive a case is to ask what should have happened—in other words, what procedures should have taken place.
Consultation processes are usually written into lots of different aspects of policy, and one of our questions is, "Were they followed or not?" There is a distinction between a body's statutory duty and good practice. We look for good practice and any areas in which bodies have to do certain things. That is where members of the public might feel that we are getting into judgments about how good a consultation has been—that is definitely an area for us because we cannot look at the specific decision that is made. We get quite a number of complaints about consultation in different policy areas; it is a growing trend.
When you investigate the processes of bodies, do they respond appropriately and take on board that there might have been problems with a consultation, or do parliamentarians need to consider whether to guide consultation practice?
I cannot generalise because in some cases people could do more but in others they do a lot and it is just that a member of the public does not like their decision. There is nothing that we can do in that circumstance.
I am not aware whether we can learn more general lessons from consultation processes per se, other than those learned already by public bodies about how to go about consultation. They are getting better at doing that; indeed, they sometimes employ independent consultants, when appropriate, to conduct a consultation to assure members of the public that it is an independent exercise that is not skewed in any way by officials. We look for all such examples of good practice.
We engage with public bodies regularly and feed back to their liaison officers on such issues, and they are discussed when people who work on the front line meet people in my office to discuss cases. You will see in our annual report that we now issue annual letters to chief executives. We look for any trends and issues on which we might want to engage with a particular authority.
I welcome some of the feedback and information that you have given to elected members, from leaflets to one-to-one meetings. It has helped me—and I am sure that it has helped other members—to advise more properly and adequately constituents who have issues when they mention the ombudsman in conversation.
In the local government part of your annual report, you say that a significant number of complaints are from people who come to you prematurely. With the volume of your work, I do not know sometimes how you manage to get through to the nitty-gritty. You say in the report that 69 per cent of complaints in the housing association sector were premature, which is significant. What further action can you and your successor take to help reduce that number of premature complaints?
A second area in which you have been proactive and helpful in your tenure is the power of the apology, which you touch on in the health section of the annual report. It has been a tremendous help to many people. Is that power also available in the other sectors that you deal with, such as housing and local authorities? If so, what could be done to make that a more proactive option for some of the organisations to use rather than get themselves into great difficulties about resolution?
Thank you for those questions about two key areas that we focused on and which are on-going issues for us. You are right to point out the high figures of premature complaints in some areas, which, as we say in our report, vary considerably both across and within councils. There are different percentages in different areas of service, but the problem is particularly acute in housing. That is probably because people want a quick response to an immediate problem, and they jump to us too early in the hope that we can do something for them quickly—and often we can—without the matter going any further.
We conducted joint research with the Chartered Institute of Housing to understand what was going on because we had a general feeling that there had been a lot of improvement to the health service complaint-handling system, particularly the part that Eric Drake was involved with when big changes were made to the service in 2005. Many of the lessons that were learned could be transferred to other sectors. The health service has one clear and unambiguous complaints process, whereas local authorities have a range of processes. We have done quite a lot of work with authorities on that.
The research pointed out interesting factors. What matters is not just the complaints process but training front-line staff to recognise when a problem has arisen and to deal with it before it turns into a complaint. Local authorities record and learn from complaints in lots of different ways.
We are finding basic ways in which bodies could do an awful lot more. After all, the ombudsman should be the last resort when all other options have been exhausted. It is much more proportionate, effective and satisfying for the public if, when a problem arises, it is dealt with well in the first instance and does not escalate. Too many problems escalate.
We did a piece of research that highlighted some issues, and a number of factors are involved. We have engaged with authorities whose complaint numbers are higher by asking them to examine their complaints processes and how they support front-line staff. We are considering whether we can do more to work with those authorities to reduce the number of complaints and ensure that complaints are channelled properly.
When a case is in the press, we always receive phone calls for help from people who have a similar case. We give advice and send such people lots of information about how to proceed. However, there should not be the discrepancies and differences that exist. That is continuing work and a task to hand over to my successor.
I have talked about apology to different parliamentary committees more times than I can remember, but I feel strongly about the issue, which applies not just to the health sector but across the board. As members know, one of the biggest areas of complaint is local government. When visiting all the local authority chief executives, I have tried to get them on board in their approach to apologising when something has gone wrong. A shift in attitude, practice and culture has taken place, but much more could be done. People still resist apologising, because their perception is that if they do so they will immediately face litigation.
We can provide more information, and we have been encouraging MSPs to propose a member's bill on the subject. Scotland is excluded from the provision of the UK Compensation Act 2006, which allows public bodies to apologise without admitting liability. That provision does not apply to Northern Ireland or Scotland, but there is no good reason why not. It is anomalous that Scotland does not provide such protection, and the gap could be plugged by a one-page act—an example of good practice is that British Columbia plugged such a gap with a short and directed piece of legislation. I hope that Scotland will pass such legislation. It is obvious that that will not happen in my term of office, but I hope that it will happen soon.
We have discussed the engagement of the ombudsman's office in planning law reform, and the committee considered delegated legislation on it two weeks ago. The policy thrust of planning reform is to increase the number of permitted developments and to increase the number of developments on which decisions are likely to be taken by a council officer rather than a planning committee. Given that direction of travel, is it fair to say that the incidence of complaints to your office is likely to increase? Such complaints might not be well founded but might be born of frustration about the delegation of such decision making.
That is a very good question. I spoke on that subject at a Planning Aid for Scotland summit that was held towards the end of last year. We support a lot of the reforms that are being proposed for planning, but there might be greater scope for people to complain about different aspects of the process and the point at which discretion is exercised. We will monitor the knock-on impact of the reforms, and I hope that my successor will bring the results back to the committee.
The legislative changes are not exactly the same, but I know that my counterpart, the Local Government Ombudsman in England, has already argued for more resources because he anticipates a substantial increase in complaints on planning issues.
As David McLetchie said, such complaints are not necessarily likely to be upheld—although I would not want to prejudge them—but there is the potential for other things to be challenged, depending on how a complaint is categorised. If people do not get the opportunity to be heard and their complaint is decided by an official, there may be frustration and discontent.
Most of the planning cases that we see are not the major cases that hit the headlines—although we see one or two of them—but the day-to-day things that people get very upset and emotional about. Planning is an emotive topic, particularly where people wake up every day to something that they really oppose. That frustration is often seen in the challenges to our decisions on complaints, because people transfer to us the frustration that they originally felt at the local authority. It is frustrating for our complaints investigators, too, because they know that ultimately there is nothing that they can do to help.
We work closely with Planning Aid for Scotland, the Society of Local Authority Chief Executives and Senior Managers and others. We are currently working with the Standards Commission for Scotland to look at a much more simplified complaints process specifically for planning. We are committed to having that process up and running in the next few months—I am reminded by David Robb that it will be ready next month. It is a question of getting information to people and managing what happens at the front line. When people work in planning departments, there needs to be a lot of training to ensure that they understand what happens. We will monitor what happens, and others will be able to give you stats on that next year.
I followed with great interest and concern the judicial review and Lord Macphail's opinion, and I notice that you devote quite a lot of the annual report to it. In light of that opinion, do you think that any change needs to be made to the way in which the ombudsman's office is set up under legislation? Is there scope for that to be considered at the moment, when the whole landscape is being considered?
I was particularly concerned to note—I had not picked this up before—that the gentleman in that case still does not have a remedy. I would welcome your comments on that. I realise that it is a wide-ranging area, but do you think that changes need to be made?
The impact of the opinion on our legislation is interesting, and I will ask Eric Drake to comment shortly because he was involved most directly in the judicial review and wrote the section on it in the annual report.
The committee knows my view—which I gave it last year—that I did not think that the topic of free personal care should have been under judicial review in the first place because it was a political issue. There was an understanding in the Parliament about the act that it had passed. If that was not clear, it should have been clarified politically. We were encouraged to see that Lord Sutherland was asked to review the matter. I gave evidence to him on our experience of the judicial review itself, and various lessons came out of that exercise.
Eric Drake (Scottish Public Services Ombudsman):
We devoted quite a bit of the annual report to the judicial review, because it is the first one that we have had. In fact, it is the first one that an ombudsman in Scotland has had, so it is groundbreaking. As Alice Brown said, we found it slightly odd that we were not challenged directly on how we had exercised our jurisdiction but on the interpretation of the free personal care legislation. Lord Macphail said that he reluctantly came to the view that we were wrong—so was everybody else. We thought that the legislation meant what everybody else thought it meant and what the Parliament had intended it to mean. He came to the conclusion that the legislation did not mean what everyone thought it meant.
On our legislation, I am not sure that I can identify anything that needs to be changed as a result of our experience. Although we lost on a technicality, the judge was supportive of our general approach. He understood that we were different from the courts and acknowledged that it was appropriate that we were different and that our reports were not written like court judgments but directed at members of the public. From that point of view, although I would not like to go through the experience again, some positive things came out of it.
Eric Drake is right to say that the judge endorsed the investigation process, which was encouraging, not least for the complaints investigator involved. As Patricia Ferguson said, a member of the public still has not had appropriate redress, which I very much regret.
The case also raises issues about the quality of the drafting of legislation, which is a much more general issue for the Parliament as it relates to other legislation as well as to our act. There is a learning experience for us all about being clear in drafting, the financial memorandums that support the drafts and so on. There is more work for everyone in that regard.
There are no other questions, so it only remains for me to thank the witnesses. This is your last evidence session as ombudsman, Alice. We have enjoyed your evidence, and your undoubted commitment to and enthusiasm for the job over your tenure have been obvious to everyone. We will heed your wise words this morning and see how we can build on your successful legacy. When we approach our inquiries or evidence sessions, we will ask our support team to try to feed in input from the ombudsman when appropriate. We wish you all the best in your future endeavours, and we will do our very best to get a successor who will carry on your successful legacy. Thank you.
Thank you very much for your kind words.
Meeting continued in private until 12:49.