Scottish Public Services Ombudsman
Item 3 is consideration of the work of the Scottish Public Services Ombudsman. The ombudsman has published her report for 2006-07, which was laid before Parliament and of which members have a copy. We are pleased to welcome Professor Alice Brown, the ombudsman, who is accompanied by David Robb, director of policy and development, and Kerry Barker, complaints investigator. I invite Professor Brown to make an opening statement.
Professor Alice Brown (Scottish Public Services Ombudsman):
Thank you for inviting us to present our annual report. We welcome the opportunity to discuss some of the issues that the office has faced over the year and to get feedback on the challenges that lie ahead. In previous years, we presented our annual report to the Local Government and Transport Committee and had a lot of good discussion about a number of issues. As ever, lack of time prevents us from going into a lot of detail, so we are happy to provide any additional information in writing or to have follow-up meetings with members if that would be useful. We have provided a briefing paper to members. You will be pleased to hear that I will not repeat all the content of it, but I will emphasise one or two points.
I thought that it might be helpful, particularly for new members of Parliament, if I first explained the background to the establishment of the ombudsman's office. It is now five years since the office was established. Pre-devolution, Scotland had ombudsmen; it had a local government ombudsman to reflect the fact that the local government system here is separate, a housing ombudsman and a Scottish part of the office of the UK Parliamentary and Health Service Ombudsman. However, the Scotland Act 1998 identified that, post-devolution, Scotland would have to make arrangements for complaints about the Scottish Government to be taken in Scotland and to consider devolved areas.
The Scottish Parliament thought imaginatively about what it might do. It had consultation exercises and asked what kind of ombudsman's office Scotland wanted to reflect the new conditions. Scotland has led the way in that regard. Rather than creating lots more offices, the Parliament decided to merge the former offices, rationalise the service and consider the matter from the point of view of members of the public whose complaints could cover different areas of responsibility, such as local government and health. The idea of the one-stop shop emerged whereby people could come to one office to have their complaints addressed. There were lots of other ideas about how to make the office more modern and accessible. In the past—this still applies to the Parliamentary and Health Service Ombudsman in England—people had to make their complaints in writing, via an MP. Currently, in Scotland, people can come straight to our office or they can e-mail or text their complaint to us—I know that this committee has a particular interest in such methods of access. We can also receive complaints in different languages; we do that almost instantaneously, which makes a big difference.
It is useful for new members to have a wee bit more information on what the ombudsman does. We are part of the administrative justice system and are seen as an alternative to the courts where there is a dispute between a member of the public and a public body or a body delivering public services. We are charged with considering whether there has been maladministration, service failure and, in the health service, clinical failure—our remit is wide ranging. We consider whether there has been individual injustice for the person making the complaint and the wider lessons that can be learned so that improvements to the broader delivery of services can be made.
The ombudsman should be seen as the last resort. We work on the principle that disputes should be resolved with the parties concerned as far as possible and should escalate to our office only if they cannot be resolved. Once we have made a decision on a complaint, that should be the last resort, too, unless our decision is judicially reviewed—we might come back to that point.
We are complaint focused in the sense of providing an independent source to consider a complaint and a dispute. Most complainants want an explanation of what went wrong and an apology if that is appropriate, but they also want some demonstration that the organisation has learned from what went wrong and that the same thing will not happen to someone else.
We are independent and impartial. We are not an advocate for the complainant, although we try to level the playing field. We also take evidence from the body that is being complained about. We should put this in perspective: of all the transactions that are made throughout public services in Scotland every day, whether in local government, health or housing, only a small percentage make their way to the ombudsman's office. Most problems are resolved at their root.
Therefore, our core work is to take inquiries from members of the public and do a bit of signposting. Quite often, people come to our office when they should be contacting the Financial Services Ombudsman in London, for example. We take complaints and pursue them at different levels by considering them to determine whether we can resolve them informally. Some that we cannot resolve informally we take to full investigation. Last but not least, we consider whether there are broader lessons to be learned from the complaints. We work with the bodies under our jurisdiction to prevent complaints from arising in the first place but also to demonstrate how they put the lessons from a particular complaint into practice.
You will see from the annual report that the sectors that we cover are wide. We cover everything in local government and the health service—that includes complaints about individual general practitioners and dentists, for example—housing associations, the Scottish Government and all its agencies, further education and higher education. Our office covers virtually everything in the public service.
If you have had a chance to look at the annual report, you might have seen that many generic issues arise, such as poor communication and poor record keeping. However, there are also specific issues of importance in particular sectors, so not only do we have to be generalists and consider the generic issues, we also have to be specialists to identify some of the things that go wrong in particular sectors.
You will also have seen from the briefing paper and the report that inquiries and complaints continue to rise but that the rate of increase is now lower than previously. It is beginning to level off a little. People are more aware that they can complain, but a crucial area of work for us is working with bodies to prevent premature complaints—in other words, complaints that have not been through the process of the body itself—coming to us. That is quite a challenge for us. We have done quite a lot of research and have worked with the bodies concerned. For example, we have a meeting with the Society of Local Authority Chief Executives and Senior Managers to talk about that, because it is a particular issue in the local government sector and for housing more generally.
Last year, we got additional resources to deal with cases that come into the office. Those were welcome and helped to identify the time taken to handle complaints, which we were concerned about. As a result, our on-desk numbers have reduced dramatically from thousands at the beginning of the year, through about 900 in April down to about 600, which is a much more manageable level for complaints investigators such as Kerry Barker and her colleagues to handle.
Under the theme of proportionality this year, we have introduced what we call our gateway initiative, whereby we screen out early on some of the cases that have come to us prematurely and identify others that can be resolved quickly. We have also introduced new key performance indicators for staff on some of those matters and are giving timescales to individual members of the public.
What is the impact of our work? Members should be aware that we lay a monthly compendium of all the cases that we report on—the total was 315 last year. We provide a monthly commentary, which we circulate to your offices, because we appreciate that nobody necessarily has the time to read all the reports. However, issues that interest members might come up in particular commentaries. You can use the commentary as a source and then find out more information from our website or by contacting our office, if that would help.
We consider how to feed back the learning from our cases. We have good examples, particularly in the health service, where there have been changes in procedures for handling conditions such as deep vein thrombosis or eating disorders, and in policy and guidelines on issues such as free personal care, which is a topical one. It is not for us to make policy on such issues—far from it—but it is for us to identify the need to address them in some way or another.
We provide a lot of information for complainants in leaflets and through our website. I was interested in your discussion with the previous panel of witnesses, because planning is a big issue for us and one on which many members of the public perhaps expect us to do things that we cannot do. We feel quite frustrated about that, so we have produced more leaflets to help the public to understand that we cannot overturn a decision if it has been properly made through the planning process. However, that is often misunderstood and people feel that we are unable to help in the way that they would like us to.
We also produce lots of information and guidance for bodies under our jurisdiction. We have a valuing complaints initiative to help bodies get it right in the first instance, to prevent disputes from escalating, and to encourage them to apologise if things go wrong. David McLetchie discussed that with us when we appeared before the Local Government and Transport Committee. We produced a leaflet on that, because often an apology can defuse a tense situation and prevent disputes from escalating.
We have a role in raising awareness. We provide a lot of information for MSPs and councillors, as well as others, because we know that your constituents come to you with a lot of issues and we are happy to provide advice for you on how to deal with them.
Lots of initiatives are still to be worked on. We discussed with previous committees and with ministers whether Scotland should introduce legislation to allow public bodies to apologise without fear of litigation. The UK Parliament has passed the Compensation Act 2006, which allows bodies in England and Wales to do just that, but it excludes Scotland. In that sense, there is a gap. I hope that that can be taken forward.
We have introduced an accreditation programme for our complaints investigators in partnership with Queen Margaret University. The course is part of its masters programme and is open to people working in other public bodies in Scotland and elsewhere. The pilot course started earlier this year and we were pleased to see people from other offices on it; one local authority sent people on it, which is encouraging.
We contributed to the Crerar review, which considered the whole issue of regulation, audit, inspection and complaint handling. We were encouraged that the review endorsed our view that there should be a model complaints process for all the public services in Scotland. We commented on some of the proposals in our briefing paper.
We are very much engaged in discussions on shared services with new offices such as the Scottish legal services complaints commission. We are also part of the administrative justice steering group. The UK Tribunals, Courts and Enforcement Act 2007 has an impact on Scotland's administrative justice system. We are keen for Scotland to consider how that act will play out. We have made proposals about taking a Scottish perspective on some of these issues. That does not cover the regulation side but relates to tribunals and alternative dispute resolution, on which the Cabinet Secretary for Justice led a debate in the Parliament recently. The topic is close to our heart. We are not regulators, but we are an important bridge. We consider the injustice for the individual and the lessons that can be fed back to regulators and inspectors.
We are also engaged in considering the new human rights bodies. The Equality and Human Rights Commission has been established and there will be a Scottish human rights commission. Neither body will be able to consider individual complaints, but we can and we are getting a growing number of complaints with a human rights dimension. We will want to work effectively with those new bodies to ensure that our work is complementary and does not overlap.
Last but not least, we have commented on our first and only judicial review to date, on a free personal care case. We have decided not to appeal the judgment of Lord Macphail on the ground of cost; it has already cost our office and the public purse quite a lot of money to defend the judicial review. We also have to consider that it would take about a year and a half for us to get a judgment. We felt that the case should not have gone to judicial review—the issue was that there had to be clarification from the Government in office at the time. We are encouraged that that clarification will now be provided and that Lord Sutherland is undertaking a review. We are happy to share with the committee the evidence that we submitted to the review, because it raises points about other anomalies in the system.
We are also taking part in COSLA's consideration of the matter and we look forward to seeing the Auditor General for Scotland's report on it, which is due out in January. Free personal care was always going to be an issue for the Government and Parliament of the day to consider, and we welcome the review.
I am happy to take questions on our work and, indeed, any suggestions for the future.
I will follow up your comment on the judicial review in the McLachlan case. You mentioned cost. Will you tell us how much it cost the ombudsman's office to participate in that case?
The minister subsequently described Lord Macphail's decision in the Parliament as being entirely in accord with the operation of the law and the published guidelines. The essence of the decision was that the liability to make a payment for care costs arose on the date on which a contract was entered into with a care provider, not on the date of assessment. What legal advice did your office take in making its initial decision? Do you have legally qualified staff in your team?
On the cost, the process is not finalised yet, because we are considering our appeal and we will lay before the Parliament another report that presents our view on where we are now. However, we estimate that it is likely to cost our office about £100,000. We still have to wait to see how Lord Macphail awards the other costs, because we could be liable to pay Argyll and Bute Council's costs as well.
Mr McLachlan—I can mention his name because he has gone on public record on the matter—has also incurred costs because he was named and decided to appear. Because of that decision, he had to pay costs to the court for appearing there and, of course, he had his expenses for travelling to Edinburgh. He could also be liable for costs. That worries us because of what it says to individual members of the public. I think that it would be a huge barrier for a member of the public to bring a complaint to our office if they felt that they could be named publicly and would then feel the need to defend their reasons for pursuing the issue, as Mr McLachlan did.
Let us not forget that, two years ago, Mr McLachlan raised the issue and we said in our report that it was unreasonable for any member of the public to be caught between two public bodies that were disputing who should pick up the cost. He made two complaints: one about the Scottish Executive and one about the council. His view, with which we agreed, was that he was being sent from one to the other. Each body was saying that it was the other's responsibility. It is impossible for an individual to resolve such a situation. Meanwhile, his father's need continued, although his father has died since the case started. That is not a satisfactory position to be in and was not a satisfactory position for us to examine because, at the end of the day, we felt that it could be resolved only by clarity on the position and there are clearly differences of view on that.
Kerry Barker is with us today because she is the complaints investigator who worked on the subject. Indeed, she is working on the related subject of continuing care. The committee might be interested in some of the overlap with that.
That is the position on cost. We are still waiting to see how Lord Macphail awards the costs, so it could cost us more than it has hitherto. Therefore, we felt that it would not be wise to pursue an appeal.
The legal advice that we got at the beginning was on our interpretation of the situation. However, let me make it clear what an ombudsman's role is and what a judge's role is. They are quite different, and Lord Macphail explains that well in his judgment. Indeed, he was supportive of the approach that we took and was not critical of the investigation and process.
The Scottish Public Services Ombudsman's office does not make law or policy. We consider issues first of all from the perspective of the person who has made the complaint and whether there has been a problem that has led to injustice or hardship. In the McLachlan case, the test for us was whether it was reasonable in the circumstances for the council to pay the costs. We considered the parliamentary debate, the legislation, the guidance and the different interpretations that other authorities had made. Different local authorities may interpret the same types of issues differently, which was an issue for us. We did not make a technical, legal judgment on the legislation; rather, we said that it was unreasonable for the payment not to kick in at the point at which provision was made. Previously, there was a loophole in respect of delays in assessment, which meant that some people had long waits. That gap was closed to some extent as a result of local authorities agreeing that people should not have long waits.
David McLetchie made a clear point about costs arising on the date on which a contract is entered into. I should make it clear that I am talking about new people coming into the system rather than those who are already in the system, unless they decide to change care homes, perhaps. Delays between assessments and the point at which contracts are entered into could be an issue. In many areas, it is families who identify care homes and go through much of the procedure. It would be an additional burden on individual local authorities to have to do a lot of that work.
Kerry Barker may want to add to what I have said.
Kerry Barker (Scottish Public Services Ombudsman):
I think that what has been said is right. I must watch myself, as I am in danger of becoming a complete anorak on the subject. David Robb will shout at me if I try to get too technical.
I think that it is right to say that the full implications of what Lord Macphail said have not been fully explored yet. With all due respect to the current company, those implications were not fully explored in the parliamentary debate. To be fair, the debate was not intended for that specific purpose—it was about the tangential issues of who was represented, who was not and who had chosen to join the debate. However, what Lord Macphail said has other implications that directly impact on the interpretation of when and whether a duty to pay for a person who is ostensibly a self-funder arises for a local authority. I do not think that we have fully explored those implications yet.
Was there not a judicial review against the ombudsman because you exercised a power to ordain that the council should make a payment to Mr McLachlan's family? If you had not made a definitive order that was binding on the council but simply expressed an opinion on the reasonableness of the council paying costs—you mentioned a reasonableness test—would there have been less of a basis or perhaps no basis for a judicial review? Perhaps I am being the devil's advocate. You said that the ombudsman is not a judge, but the fact that sanctions are at your disposal in effect makes you a judge and therefore makes such judgments susceptible to judicial review. If, on the other hand, you were a commentator and made recommendations and not judgments with sanctions, your decisions would not be subject to judicial review. Is that analysis correct?
We make recommendations; we do not have enforcement powers. We laid a report on the matter last year, and the Local Government and Transport Committee asked what would happen if the council did not agree to pay the costs. We have the power to lay a special report—which we have never had to do yet—in which we can point out to the Parliament that a body is not carrying out recommendations. It is correct that responsibility for holding such bodies to account and asking why they may not be carrying out recommendations should then move over to the Parliament. We would have laid a special report if there had not been a judicial review.
There is a more constructive way of looking at things. We identified that there was an issue and we were happy to discuss it with the sector—with COSLA and others—with a view to finding an alternative solution to going down the judicial review route. It is clear that anomalies exist; the issue is how to address them.
So, as an ombudsman, we did not make a ruling that the law explicitly says X; we took a much more holistic view and said that, given the legislation, the guidance and the debate in Parliament, it was reasonable for the family to assume that, as there was clearly a need for care, once the care was provided it should have been paid for. We should remember that we are talking about only the amount of money that applies in those circumstances, not the whole package.
You asked about legal qualifications in our office. As it happens, Kerry Barker has legal qualifications, as do one or two other members of staff, but we do not recruit on that basis alone—far from it, because the test that we use is whether the average person on the street would think that something was reasonable. We want to avoid strict legal interpretations.
I welcome your annual report, which is interesting. I will touch on several points that arise from it; I hope that you can answer my questions. Your report mentions information leaflets, with the suggestion that councils do not provide enough clarity and are possibly unwilling to be open with the public. What can we do to address that situation? Are leaflets enough, or do we need to do more, perhaps by improving training or public services?
The report highlights nursing care, which is a concern to me, because I have a lot of casework about the quality of nursing care for constituents. That casework is on the increase, but checks by social work and the Scottish Commission for the Regulation of Care seem continually to find no case to answer. Are such complaints generally on the increase? Are initiatives such as the independent advice and support service improving the situation?
The report compares the number of complaints about the health service with the number of complaints about local authorities. The figure for local authorities seems high. Does that demonstrate that the quality of service is comparatively poor, particularly in the housing sector, which is mentioned in your report? In discussing housing, you touch on the right to buy, but there is not much detail. What are the key complaints regarding the right to buy? Can you provide a breakdown of the figures on that?
You mention work that is being done on further and higher education, particularly in relation to overseas students. I am keen to see the results of that. Can you provide the committee with information on that as soon as possible?
You produce newsletters. We have been provided with some today and I have some on file in my office—they are very good. That is good practice by the SPSO, which I welcome. I also welcome your plans to expand that service.
We have touched on judicial review. I do not want to go into great detail about that and make too much of a public comment, but I largely agree with what the SPSO has done. The decision was reasonably mature and it is a pity that we cannot take the matter further. I welcome the decision that you have highlighted today.
With regard to the scrutiny review, the SPSO has a justifiably high reputation and is working well and improving, so plans to dilute its powers and create a second tier of scrutiny are simply ludicrous.
You touched on human rights. Given the excellent job that the SPSO has done since being created from a merger of several services, perhaps it would avoid confusion for members of the public if the EHRC and the SCHR were also merged. I would appreciate any comments that you have on that.
That is a lot to cover. I will do my best, but if I do not cover everything, we will follow up on your points. I welcome your feedback on our new newsletters for the housing sector and other matters.
You asked about human rights. It would not be for me to say whether there should be a merger between the EHRC and the SCHR. In the previous session of Parliament, there were long debates on that issue, and we gave evidence to the Justice 1 Committee. Our view, which we also expressed to the Finance Committee, is that there should be clear criteria for establishing any new office. Basic questions should be asked. Are we clear about its functions in the first place? What is it there to do? Could those functions be performed by another organisation? If not, why not? If the committee would find it helpful, I would be happy to provide it with those questions. They are useful principles to consider before moving into another area. We are a small country and, having created some simplicity, we do not want to make matters more complex than they need to be.
I very much welcome the opportunity to work with the new organisations. They can consider the evidence from our individual cases to see whether there is a need to carry out a fuller investigation into those issues. It is a huge challenge for all public bodies to consider the best way to deliver their services, bearing in mind their duty to do so in a way that is compliant with human rights. It is about not just following the letter of the law, but considering how they deliver a service that meets the specific needs of different members of the community. There is quite a lot of work to be done in that regard. The new bodies will be very busy in the initial stages, and we look forward to working with them.
I am happy to provide the committee with our submission to the Crerar review. We look at the health service as a good example of Scotland simplifying the process considerably, which it did by removing an extra tier of the independent review panel. There is a question over whether the same should be done for social work, where there are also issues about the review panels. Scotland moved to a much simpler process in April 2005. Once a complaint has been raised with the health service, it comes straight to us. That links to your point about the independent advice and support service, which is a support network run by Citizens Advice Scotland. We worked with CAS, the department and officials to develop that. If people get the right advice early on, the situation does not escalate—it neither goes to court nor comes to us. It is appropriate that people should get the right solution early on. We would be concerned not to put in additional layers that would act as a barrier to people complaining and add to the complexity and the cost. Further, there can be a conflict of interest, if a body is not seen by the public as being truly independent. England, Northern Ireland and Wales are following the lead that Scotland has taken in the health model to simplify the complaints process. We welcome lots of aspects of the review, but that one aspect of it—about adding additional layers—is a kind of backwards step.
You asked about further and higher education. I come from the higher education sector, which has only relatively recently—in autumn 2005—come under our jurisdiction, after particular pressure from the student unions. We have been looking at the trends, and are looking forward to working with the sector on a more in-depth survey. For example, why are most complaints received from overseas students? It is not unconnected with the fact that the costs involved in studying here are high if people come from overseas, so the notion of the contract between the student and the institution is more acute. There may be issues to do with expectations—what people expect when they come here—and cultural differences. We need to understand that a bit more. We have been working with the higher education sector, which has been very receptive to thinking about that. Scotland wants to recruit lots of students from overseas, for good reasons, and it is important that those students have the right experience when they are in Scotland. What is encouraging about a lot of our work is the way in which we can work with the sectors, and provide feedback on those general issues, to allow them to take that forward.
You asked about comparisons between health and local government, particularly in relation to poor housing. That is quite an interesting area. For good reason, we see only a small percentage of the complaints that arise. I am interested in encouraging those sectors to analyse much more effectively the complaints that they handle before they even come to us. I keep making the point that that is free market research—they have the information at their disposal. Our valuing complaints initiative is about asking chief executives, "Do you know how many complaints your sector has received? How are you addressing them and how do those efforts link to other measures that the Auditor General might be asking you to take to deliver best value?" In other words, we want those sectors to make connections between complaints as a way of demonstrating that they are responsive to members of the public and that they take seriously the handling of complaints on service delivery.
Just as the front-end delivery of service should be valued, so, too, should the front-end handling of complaints about the service. Staff should be trained effectively—that goes back to our accreditation programme. Bodies should be encouraged to send people on such programmes. Complaints handling should not be seen as the job that no one wants to do. As soon as one mentions complaints, people feel negative. I often use a former secretary of state's quotation that complaints should be treated as jewels to be treasured. That does not reflect how staff feel when someone is complaining to them, but the point that was being made was that complaints teach organisations to listen and to ensure that their services are delivered in the way that they want them to be delivered. All the evidence shows that it is much better for staff, who are often pressurised, if they feel that they can handle complaints effectively. We are working on that with the sectors through the valuing complaints initiative. I cannot go into all the details now, but we would be happy to provide you with more information.
The issue that was raised on right to buy is again to do with guidance. People need to know that if a housing stock transfer is agreed to, it may have an impact on their right to buy. We were concerned that, in some cases, people were being informed about that change in rights only at the point at which they signed the new contract. We felt that, as with any big financial commitment or contract issue, people should have time to consider all the facts and possible impacts before they sign on the line, and that that should not impact on their other rights. We asked appropriate officials in the Government whether we could have some clarity on that, because we thought that it was unreasonable to expect someone to sign on the line without realising that, as a result, they might not have the same rights that they thought they had. It is a question of providing clarity. Some of your earlier witnesses spoke about the importance of being clear with members of the public, which improves the situation for service deliverers as well.
I have not quite covered all your points. Was my answer sufficient?
I have taken notes on most of them. What you said was helpful. If you and your colleagues have additional information, you can get back to the committee at a later date.
I want to ask some brief questions about confidence in your organisation. I was interested that you said that the fact that Mr McLachlan ended up being liable for costs would act as a disincentive to people bringing complaints. It is certainly the case that when constituents of mine have complained at local level, they have been told—especially by the health service—that they would be co-operated with, were it not for the fact that people were so litigious. In my experience, people are not litigious. The phrase that is most commonly used when people bring a complaint is, "We don't want this to happen to someone else." The ombudsman system is extremely important, but people must have confidence in it.
How many cases have you upheld on appeal? You might have said in your opening remarks. You say that you are the body of last resort, but there are people who never get as far as that last resort because they cannot resolve matters in their own heads. Such situations are difficult. My understanding is that if the number of cases that are upheld by the Scottish Public Services Ombudsman, as the body of last resort, is very small, that must challenge confidence in the system.
Your reports are laid before the Parliament. You seem to suggest—I am sure that this is the case—that when you uphold a complaint and there is action that the Parliament could take, you would expect it to take it, but that there is no locus for the Parliament or MSPs when you do not uphold a complaint. That is a challenge as far as the perceived existence of a parliamentary role is concerned. In some circumstances, there is no parliamentary role; that issue has been raised with me. What can you do when people have no confidence in the investigation? I have specific constituency cases that relate to that situation. What confidence can you give us, as folk who receive such reports, that people's complaints are tested in such a way that they can be reassured that although yours is a body of last resort, it is reasonable for them to have confidence in it?
Those are good points. Obviously, I cannot discuss individual cases but I can talk about the generality.
One challenge for our office was that we inherited many different processes from the organisations that were involved in the merger. In that change, our organisation needed to look at the whole process of investigation and how we handle complaints and inquiries before they reach the investigation stage. There are many different steps in the process before that stage.
We have outlined a clear process that we follow. The challenge for us is to explain that process as well as we can to members of the public and those who bring complaints on their behalf, so that they understand it clearly. We can start off on the wrong foot if people think that we can do things that we cannot do, or if they think that certain outcomes—for example, that we can get a chief executive sacked—will happen as a result. People sometimes come to us with unrealistic expectations. We need to make a good connection with the complainant early on, when we consider whether the complaint can be resolved without going through the whole process.
In our office, the process includes different stages. As I said, we have a gateway project, in which we consider whether the complaint has come to us too early and whether we should encourage the complainant to go back to the body first. We can help the complainant on how to do that by providing guidance and so on.
The next stage is to consider the complaint in more detail. Whether we can deal with a complaint is not always a straightforward issue. Obviously, some cases are straightforward, but others are on the boundaries of our jurisdiction because of the topic or timescale involved, the body that is the subject of the complaint or the fact that the complainant is perhaps not a member of the public for the purposes of the Scottish Public Services Ombudsman Act 2002. Those complications all need to be considered in detail. We then gather information from the body that is the subject of the complaint so that we can consider the issues further. In some cases—particularly complaints involving health—we might need to seek further advice so that we can consider what the key issues are.
The complaint may then come to the weekly panel that decides on marginal cases. With some complaints, it is obvious that they need to be investigated or that they cannot be taken further or can be resolved quickly. The panel considers cases that might be on the boundary and makes a judgment against the criteria.
When we decide to investigate a complaint, the complaints investigator draws up an investigation plan. We publish standards and commitments against which our investigations can be judged, so anyone who wants to complain about our service knows in advance the criteria that we set out. The investigation plan identifies what the facts of the case are, what should have happened, what people say happened, what types of questions we need to ask and what kind of evidence we need to look for. The plan is signed off by the investigation manager and, with the manager's endorsement, the complaints investigator can then proceed with the investigation.
On concluding the investigation, the complaints investigator drafts a report—again, that is looked at by the manager—that brings together the evidence and draft conclusions. We share the draft report with the complainant and the body that has been complained about. That system did not apply in all our previous offices, but we introduced the practice so that we could invite comments on whether we have, for example, missed a vital piece of information or misunderstood the evidence. However, issuing the draft report tends to attract challenges to the decision rather than additional information. That is understandable, because people whose complaint has not been upheld may feel that we have not understood some things. We receive their comments and then decide whether they have provided substantive new information or a different interpretation that would make us change our finding. If we change our finding substantively, we issue a second draft and again give the people involved a chance to see that draft.
At the end of the day, the complaint is either upheld or not upheld or partially upheld. On average, individual complaints might have four to five heads of complaint, some of which might be upheld or not upheld. Indeed, only bits of those might be upheld, depending on the wording of the complaint. Again, we explain that and try to demonstrate how we have reached the judgment in our report. That is a technique on which we provide training for our staff who are involved in providing that service.
When we have not upheld a complaint, it is sometimes on a technicality of one sort or another, but we try to make broader recommendations about where improvements can be made. So, even if we have not upheld a specific complaint, we sometimes find other things to comment on. That is linked to the point that was made about how information is fed back to parliamentarians. We try to draw out some of those points in our commentaries. We might do that, for example, if we were concerned about a general trend in poor care for the elderly. Jim Tolson raised that point.
There is a real challenge for us, and our focus is on how we can continue to explain and improve the process, because there is never any end to seeking such improvement. The process can always be better, and we want it to be as good as it can be; that is why we also need training to support improvement. At the end of the day, it is a success for us if someone comes to us with a complaint and, even if we do not uphold that complaint, they still think that the process was fair.
David Robb (Scottish Public Services Ombudsman):
The question was about the proportion of cases upheld. We were a little disappointed when the annual report was published and some newspaper reports focused on the small number of complaints that are finally upheld, out of all the complaints that are brought to us. We think that a slightly more helpful figure, which is in the report, is that, of the 315 reports published last year following a formal investigation, 46 per cent of the complaints were either fully or partly upheld.
A lot of complaints are sifted out at early stages. We have spoken about the large number that come to us too early in the process. There is also a significant percentage of complaints that we are unable to look at because the body concerned is not within our jurisdiction. Something like 60 per cent of complaints are sifted out at a fairly early stage. Of those that progress to the investigation stage, we uphold or partly uphold roughly half. We think that that is a more helpful figure.
To build on what Alice Brown said, I would like to say something about the draft report that we recently received from independent consultants about satisfaction levels among complainants. We want to be a learning organisation. We are in the dissatisfaction business, but it has been heartening and encouraging to find that, even though the figures are quite low, those people who stay with us further through the process are the ones who are most satisfied. We want to give the public confidence. Often the people who are most unhappy are those whom we tell that we cannot look at their case. For those whose cases we accept, there are noticeably higher satisfaction levels. That gives us some confidence that the processes are robust and seem to be helpful.
We have quality assurance processes, which are part of David Robb's responsibilities. There are other mechanisms for dealing with complaints that are made about us, which allow us to examine the issues involved. If we are asking other people to learn from their complaints, we must clearly demonstrate that we, too, learn from any complaints that are made about us.
You must have a lot of information on patterns of behaviour by individual organisations about which people have felt obliged to come to you. A quite significant number of the initial complaints that people make are batted back, which must mean that there is systemic failure in those organisations. Do you report formally on the pattern of complaints about specific organisations to ensure that those issues are addressed? Can you interpret the figures to show that complaints arise because, for example, people have been treated shabbily at the point at which they should have been treated properly and should have been allowed to make a complaint, with the result that they end up coming to you inappropriately?
Absolutely. That is one of the things that we try to do by working with chief executives and feeding back to them. We try to produce an annual letter for every chief executive in which we set out the types of issues that arise and say that, although we might not have upheld all the complaints, there seems to be an issue in X or Y department.
Our discussion with SOLACE on Friday will include how we feed back what we have learnt in our organisation. That feedback will complement SOLACE's in-house information, which we encourage the organisation itself to feed back. SOLACE has a lot more numbers than we have, and we need to put the two sets of information together to identify areas for improvement, in individual organisations or in bits of organisations. Sometimes, there is not a big issue in one department.
We have to be careful about using raw numbers, because—as in other areas of life—numbers alone do not tell you everything. We say that if an organisation encourages people to raise complaints, it should not see that as a negative. Suppressing those complaints to get low numbers might mean suppressing dissatisfaction. All the evidence—including the evidence on health from the new service that has been set up with Citizens Advice Scotland, with which we did some research—shows that for every person who complains, there are usually about four or five who were dissatisfied and had cause to complain but decided not to do so. The evidence also shows that those who are most vulnerable and most dependent on public services are the least likely to complain. Bearing all those things in mind, there is also the challenge that not all complaints are justified—that is another point to make with regard to organisations that deliver services in sometimes difficult circumstances.
In some ways my point touches on what Professor Brown has just said.
What wider, direct engagement does your office have with the public? I have seen some of the material that has been produced for members and for the public, but—just judging from the contents of my own postbag—a lot of people out there fundamentally misunderstand what your office is for. I will not identify any individuals, but people think that you can intervene in neighbour disputes, personnel matters and so on. To what extent does that perhaps not hamper, but frustrate your work? What efforts are you making to overcome some of the general public's misunderstandings about what your office is for?
That is an excellent point—it is a frustration for members of the public and for us, too. A lot of the general inquiries that we get involve our explaining what we can and cannot do, or who may be able to help rather than ourselves. We do not have the resources to carry out large public awareness campaigns, but we nonetheless have to think about the most effective way to increase understanding and knowledge. We do that by working with other agencies: the citizens advice bureaux in different parts of Scotland, the Scottish Consumer Council, Age Concern Scotland and Shelter Scotland. Those bodies are in direct contact with members of the public, and if they understand what we do, they are then best able to give advice about that to members of the public. Similarly, we want to have effective engagement with members of the Scottish Parliament and with councillors, because they will hear some of the issues at first hand.
We have held different events. For example, recently we held a reception in the garden lobby of the Parliament. More crucially, we also held a lunch-time event for parliamentary and constituency staff, because often MSPs' staff handle such issues. That event was fully subscribed, so we want to hold another one. We also invite members to send their staff into the office because if they speak to our front-line staff, they will get good knowledge of what we do, what we cannot do, and what is the right advice to give people.
Because the situation is confusing, together with other organisations, we have produced a route map, which we want to update. We have a one-stop shop for complaints and I think that that is why we get a lot of early complaints. People think, "I will go straight to the ombudsman, because I do not want to waste my time going through a body that I have already fallen out with." We have to give an indirect message that although people have the right to complain, they have to complain through the appropriate channels.
It is a challenge to simplify the process further, and we can do so only by working in partnership with other bodies—such as advocacy agencies—that engage with members of the public. When we hold broader events—we have held events for the health sector and we are planning to hold similar events next year for that sector and for local government—we want people from within the sector to come along, but we also want people there who represent the public, because they are able to feed directly into the process of identifying what needs to be done. It is not easy—information technology helps, but not everyone has access to it, and people want different forms of communication.
Thank you. You have given us a flavour of what is positive about the changes in culture that can be achieved in many of the agencies that we deal with. From our experience, we know that the culture of how they deal with complaints needs to change.
However, let us return to the most negative aspect of the past year's work—the McLachlan complaint against Argyll and Bute Council. Such situations change organisations when you get involved. What about your most recent involvement with the courts? We have been talking about alternative dispute resolution, yet an organisation that has been set up to bring that about has found itself in the courts. Let us leave aside the money, for the moment, as that is another issue. Can you tell us about the decision that was made to publish your judgment against Argyll and Bute Council? Was legal advice sought at that point or further down the line? I am trying to establish whether your organisation was aware of the legal implications and risks associated with that action before your judgment was issued. Who took that decision?
I have been in a similar situation myself. I have argued with lawyers to proceed with something that did not make much sense legally but which involved a situation that I felt was extremely unfair. Was there a distance between the caseworker and the organisation? Were all the risks evaluated, including the risk to your reputation and the costs? At what stage were the decisions made? What lessons have you learned from that sad experience? Do you hope that Parliament will take up some of the issues that you mentioned earlier?
I know that I have asked a lot of questions.
I will do my best to address them all. We have a process for making the final decision on any case. Any case could end up being judicially reviewed, so we must be satisfied that we have reached our decision on the basis of the evidence that is in front of us and that any court that examined the decision would consider that we had been reasonable in the process that we followed and in using the paperwork that we had at our disposal. We were encouraged by the fact that the judge in the case that you mention said that we had been reasonable.
Clearly, some of our cases are potentially more risky than others, as they might take us into areas where we have not been before. The case that you mention took us into one such area, although we had pursued similar cases that were connected to free personal care and continuing care. It is only when a policy is implemented that problems arise and individual members of the public try to resolve them. When they do not get a satisfactory answer, they come to us so that we can look into the matter. In pursuing such a case, an individual complaints investigator will raise the issue with their manager, who will then raise it with me and the director of investigations. We are a team but, ultimately, the responsibility rests with me as the ombudsman and head of the organisation.
I was fully satisfied that the investigation had been carried out appropriately and that the conclusions that had been drawn were sound. However, we asked for legal advice at that stage on whether our interpretation—our argument, if you like—held up. The legal advice that we received was that our argument held up and, on that basis, we felt that it was unreasonable for the council to refuse to pay for the individual's personal care.
One of the difficulties in the case was the fact that the ground rules changed during the judicial review process. The council's original argument was that it could not afford to pay for the personal care. However, on the third day, the case turned and became much more about legal interpretation. There was nothing that we could do about that once the proceedings had started. It was a bit frustrating for us because, if we had known in advance that that was going to happen, we would have argued the case rather differently. Hindsight is a wonderful thing and, when we consider the case, we wonder whether, if we had slightly changed one word or another, the outcome might have been different. Who knows? One should not speculate, although a different judge might also have produced a different outcome.
You are right to say that we should now ask what lessons we can learn from going down that road. We had a conversation with Argyll and Bute Council in advance, in which we told it what we were likely to do and why we had reached our conclusions. The next thing that we knew, our decision was being judicially reviewed. In similar cases, especially when we are in new territory, we will want to reassure ourselves—as we did in the case in question—that we have gone through the proper process, that the investigation has been carried out thoroughly and that, if we need legal advice, we have taken it. However, legal advice is just that—legal advice. At the end of the day, a judge can make a different decision. We satisfied ourselves that we had addressed the risks, but we will move forward from there. In other cases, we will go through the same process.
Essentially, the recommendation from front-line staff was that there was no standing back from the issue. Legal advice is important, but if I am paying and there is the potential that I will lose £100,000, the case will not proceed.
Legal advice is very important.
You were given poor legal advice.
I would not necessarily reach that conclusion, no.
Why did the legal advice that you received not anticipate that there would be changes in the judicial process?
One cannot anticipate everything that will happen when a case is judicially reviewed. I am satisfied that the legal advice that we received was sound. Other people who looked at the case were surprised by the outcome. However, there is no point in deliberating on a particular judgment. As Kerry Barker explained, we need to examine the case in much more detail, so that we can understand the full implications of the judgment.
Lord Macphail said that he reached his conclusion reluctantly and by a narrow margin, based on a strict interpretation of the legislation. He rejected all the other points that the council raised. Another judge might have decided to take a more holistic approach and give more weight to the intentions of Parliament, as reflected in parliamentary debates. To some extent, the outcome depends on who gives the judgment. I am not saying that the judgment was wrong or right—the judgment remains until another judge or set of judges reaches a different conclusion. By its nature, the matter is open to different judgments.
It is important to reiterate the point that Alice Brown has made—that the judge's decision was based on an argument that was made by the council only on the third day of the judicial review proceedings. That evidence was never put before us when we examined the complaint and was not in the original petition of complaint. The judge upheld none of the grounds in that petition; his decision was based solely on a fine legal twist that was raised on the third day. We had two days at the beginning of March and another day in late May. After a considerable period of time, we came back for 24 hours—six hours in legal speak—and the argument was brought up that day. We had no opportunity to address the point, because it was raised only on the last day of the judicial review proceedings. Our lawyers gave us sound legal advice and are still of the view that their advice was sound. However, what matters is what the judge says on the day.
You confirm that the legal system is expensive and unpredictable, but I am trying to determine how rigorous the assessment of risk was. There was a risk to the reputation of a body that tries to avoid the justice system and courts, as well as a risk to the public purse. As a member of the Scottish Parliamentary Corporate Body, I, too, faced the situation of having to seek legal advice. The cost of getting good legal advice shocked me, so I know that there is a dilemma.
You are, very honourably, accepting the ultimate responsibility for whether systems were rigorous then and are rigorous now in assessing the potential impact of future legal proceedings. However, I am not convinced that we have got to the heart of the situation.
I reassure you that the case went through a rigorous system on the way to the final decision. The starting point was the complaints investigator, who has delegated authority to conduct an investigation, and the case made its way through the system with support from the manager and with the director of investigations, who was one of my deputies at the time, and me going through the arguments and papers and considering other pieces of legislation.
Another important issue that has not come out in some of the debates is that of the other pieces of legislation that impact on free personal care. We considered all that when reaching our conclusion. A rigorous system is in place and the case underwent a considerable amount of debate and discussion in our organisation, with the lawyers and then with counsel, who also thought that we had an extremely strong case.
When did counsel become involved? Was it after the action had been initiated?
Yes—obviously, that was an additional cost.
The convener has touched on an important general point about the lessons that we can all learn from the first time that the SPSO has faced a judicial review. Clearly, there have been many other cases but this is the first time that a public body has taken one of our cases to judicial review, and we can learn general lessons from that.
We hope that this is not the start of a trend. We hope that, with the bulk of cases, public bodies, whether local authorities or otherwise, will accept our recommendations as they have done in almost every case in the past, and complainants will get a satisfactory resolution. Standing back from the particulars of this case, I think that there are general questions to ask about processes and lessons to be learnt about risk assessment and about whether we can be clearer in any cases that might arise in future.
Your organisation's commitment to the complainer has been honest and real. As I have said, I have been in similar situations. However, at times, hard decisions will have to be made about that commitment and where such a commitment can lead the organisation's reputation and its cost to the public purse. There will be lots of ins and outs.
Thank you for coming along and making yourselves available to take questions on that matter and others. We appreciate your attendance and look forward to working with you in future.
Meeting closed at 12:43.