Local Government and Regeneration Committee

Meeting date: Wednesday, November 16, 2011

Official Report 347KB pdf

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Scottish Public Services Ombudsman

I welcome everyone to the 11th meeting of the Local Government and Regeneration Committee in session 4. Ruth Davidson has submitted her apologies for the meeting.

Agenda item 1 is the Scottish Public Services Ombudsman’s “Annual Report 2010-11”. The clerk of the Parliament has referred the report to the committee under rule 3A.6 of the standing orders. This is the first occasion in session 4 that the committee has considered the ombudsman’s annual report.

I am pleased to welcome to the committee Jim Martin, the Scottish Public Services Ombudsman; Emma Gray, the head of policy and external communications; Niki Maclean, director of corporate services; and Paul McFadden, complaints standards authority manager at the SPSO.

I invite Mr Martin to kick off with an opening statement.

Thank you for allowing me to bring my team with me. It is a good experience for them to see the whites of your eyes, as it were. It is also good for me, because if you ask me anything to which I do not know the answer I can easily ask Niki Maclean or Paul McFadden to respond.

I am pleased to bring the annual report to the committee. As I said to your predecessor committees, my annual report cuts across a number of the Parliament’s committees, but this is the committee that has been designated to receive it. I hope that aspects of the report will interest the committee greatly. It is also of interest to the Health and Sport Committee, the Justice Committee and the Education and Culture Committee. The Scottish Parliamentary Corporate Body is responsible for scrutinising my budget and the expenditure that I make in the course of the year. It is also the body that deals with my personal performance.

I said to your predecessor committee that one of my concerns is that the Parliament’s committees cannot make the best use of the range of issues that are raised in my report if it simply goes to a single committee. I have argued that it would be in everyone’s interest if a committee separate from those that I mentioned were able to receive and interrogate the whole of the report and my office’s performance.

I raised with previous committees and raise again today the provision in the Scottish Public Services Ombudsman Act 2002 that enables me to lay a special report if a body that is under my jurisdiction fails to carry out recommendations that I make. There is no parliamentary procedure for a committee to receive a special report from me and act upon it. Last year, I said to your predecessors that we should deal with that issue in peace time—when there are no current issues before us—rather than trying to deal with procedure at the same time as we try to deal with a specific concern.

I raise that again with you today for two reasons. The first is the experience of my opposite number in Ireland when a report that was laid before the Irish Parliament on a scheme to aid families that made their livelihoods from fishing boats that were lost at sea became a matter of real political contention and split the Parliament because there was no clear procedure for dealing with it. The second is that my colleague in Northern Ireland will be in court next week or at the beginning of December facing a judicial review of his powers to lay a special report and to force a body to implement recommendations that he has made in one of his reports.

I suspect that it will not be long before a similar procedure is required in Scotland. I can think of one case in the national health service that is currently on my books that could, in the foreseeable future, require me to lay a special report before the Parliament. It is my intention pretty soon, once I have taken some advice, to write to the Presiding Officer to ask that these issues be looked at, because I think that there is a procedural matter that needs to be addressed as to how these reports are handled.

I turn to the report, convener. I hope that you will agree that it has been a pretty successful year for the ombudsman’s office. As well as running the day-to-day business of the office, we have been asked to do a number of things by the Government and by the Parliament and I think that we have done pretty well.

We have reformed all our internal processes. For example, when I arrived the oldest case in the ombudsman’s office was 808 days old; today’s oldest case is 254 days old. We are getting better at doing things more efficiently and quickly. We were asked to integrate prison complaints and take over the work of the Scottish prison complaints commissioner, an office that has been disbanded. We have taken on all those complaints, absorbed them into our operation with no extra head count and still managed to stay within our budget for the year, even though that means that, in the year that we are looking at in the annual report, we took in around 250 extra complaints—in a full year that would be about 500.

We have also integrated water complaints in the past three or four months—again, pretty well—and set up the complaints standards authority to look at procedures for handling complaints across the whole of the public service. Again, we have done that within budget and if you look at that area of our report you will see that we are actually slightly down on our head count compared with where we were two years ago. So we are absorbing more duties and managing to carry that off pretty efficiently.

In the report I raise a couple of concerns that I will draw out so that you can pick them up, as I am sure that you will want to do. I am concerned that the number of premature complaints that come to my office is worryingly high and staying at a high level, particularly for local authorities and housing associations. Sixty-four per cent of people who come to my office with complaints about housing associations have come prematurely—they should have gone through a procedure at the housing association. Fifty-five per cent of local authority complaints that come to me should have been dealt with locally.

That throws up a number of issues, because in other areas—further and higher education and, particularly, the national health service—that number sits at around 30 per cent. There are issues there about people finding their way in to the complaints process in local authorities and housing associations and about the complexity of the process. The length of time that it can take, in some cases, to get through these procedures seriously frustrates people and they come to me too early. When they do that, by the way, we do not just turn them away; we signpost them, we tell them where to go with their complaint and how best to pursue it, and very often we tell the local authority, the housing association or health board, whoever it is, that these people have come to us and that we are aware of their complaint.

Very worrying, as you will see in the report, is the number of valid complaints—complaints that we are allowed to look at under the 2002 act. That is a critical point, because the 2002 act restricts what I can look at. I can look at maladministration and service failure in, for example, local authorities and housing associations. In health, I can look at clinical judgment as well as maladministration and service failure. Of the valid complaints that we could look at, I upheld 45 per cent of the health complaints that came to me—that is very worrying—and around 30 per cent in local authorities. Overall, we upheld 34 per cent of the valid complaints that came to us. In my view, that is worryingly high. It means that people have gone through all the local procedures and yet we have found that the local authority, the health board, the housing association or whatever has got it wrong in a significant number of cases. That is very worrying—public confidence in the system is a matter of real concern to me.

One question that I ask myself is whether the high number of upheld health complaints is because I have interventionist powers in health. I can look at the professional decision making of a nurse, a doctor, a psychologist or a psychiatrist, but I cannot do that in local authorities under the current act, unless there is evidence of maladministration. I do not know what the number would be for local authorities in other areas if I were able to look at their decisions in the same way that I can look at professional judgment in health. I suspect that it would be very much higher. That is a concern.

One real task is to manage people’s expectations. Very often, people view the ombudsman’s office as an appeals body, but that is not what we are. We look at cases in which there might have been maladministration or service failure—or, in the case of health, maladministration and service failure in clinical decision making. Very often we have to disappoint people—sometimes elected members, but usually ordinary citizens—about what we can and cannot do for them.

Nevertheless, convener, I hope that you agree that, overall, the report shows that we had a very good year in 2010-11 and I think that we are on course for another good year in 2011-12.

Thank you for those remarks. I wonder whether two of the issues that you have highlighted—the level of premature complaints and the relatively high level of successful complaints—suggest a failure in the bodies that people are complaining about either to make their procedures transparent enough to the public or to go through the proper procedures. Are you able to go back to repeat offenders and say to them, “You’re getting this wrong and this is how you need to change your practices,” or is that not part of your remit?

It certainly is part of our remit. Transparency is very important. The value of the national health service complaints system is that it is clear, simple to use and short. Everything is clearly signposted and people know how to access and use the system.

However, Scotland has 32 local authorities and 32 variations on a complaints system. Some systems have two stages, others have three or four and one, arguably, has five, although the authority would argue that there are four. The Sinclair review, which came out of the Crerar report on scrutiny bodies, made it very clear that the user needs a clear signpost for where and how to complain, a very simple-to-use complaints procedure with as few stages as possible and clear endpoints. Our local authorities and housing associations in particular could do far more to ensure that the citizens who use their services understand those procedures.

This also puts elected members in a difficult position. Despite the fact that they can access a formal complaints procedure that is run mainly by officers, people are still taking complaints to their local councillors, and I know of cases that have been delayed because people have gone through councillors, have not got to where they want to go and have been signposted back into the formal complaints procedure. That simply confuses people; for them, the council is the council. The issue needs to be looked at.

I am always wary of advertising my services. After all, if I come out and say, “I am the ombudsman—bring me your problems,” people will do so and the level of premature complaints will simply go up. Part of the task of the complaints standards authority, which Paul McFadden runs, is to take the Sinclair initiative and make it reality. That is uncomfortable for some authorities because it means change and doing things in a different way; nevertheless part of the job that Paul and I have to do is be the grit in the oyster, if you like, and keep pushing people in the right direction.

Paul, can you tell us about progress in that area?

Progress has been particularly good in this year’s two priorities: the local government and housing association sectors. We are slightly further ahead with local authorities, because we started earlier with them. When we decided to set up a working group of local authority representatives, we invited all chief executives to nominate people and have involved 16 or 17 people in the process. That group has helped to develop a draft of a best practice model for complaints procedures, which we hope to present soon to the Society of Local Authority Chief Executives and Senior Managers and the Convention of Scottish Local Authorities.

Progress is therefore good, and the next stage is implementation. A key aspect is how we monitor compliance. We have always been keen for compliance monitoring not to add to the regulatory burden on bodies, and we want to build it into the existing regulatory structure. We have had positive discussions with Audit Scotland about building monitoring into existing structures, through both self-assessment in authorities and the annual shared service risk assessment. We are also progressing discussions with the key stakeholders in housing and other sectors, so, as I have said, there has been good progress.

10:15

Good morning. I should perhaps declare as an interest that I am a member of Fife Council until next May.

I am new to this committee and the Parliament, so I ask the witnesses to forgive my naive questions. First, I thank the ombudsman for the report, which was highly educational and very helpful. One of your useful publications is “A guide for MSPs and Parliamentary Staff”. I am sure that you know the publication back to front, and I want to check about a comment that you make on page 3:

“we can’t question a decision simply because a complainant is unhappy with it.”

I understand that, but I assume that, if a complaint is that there has been maladministration, you would look at the maladministration. If you then said that there was no maladministration, that would be the end of it as far as you are concerned, but I presume that the complainant could go somewhere else. Is that right?

The answer is no. There is nowhere else; this is where the buck stops.

I am blessed, or cursed, by the fact that everyone who comes to my office is right: the complainer believes that they are right and the authority believes that it is right. Somebody has to take a decision—and that is me. If someone is unhappy with how we have taken the decision, they can go to judicial review.

The point that we are trying to make in that publication is that there is nothing that the ombudsman can do simply because someone disagrees with a decision that has been duly made. If there has been maladministration, I can look at a decision, but we are not an appeals body. The issue raises its head particularly in planning issues. An awful lot of people come to me believing that I can overturn the decisions of a planning committee or an officer’s decision on planning. I cannot do that unless there is maladministration.

Thank you. I have a second question. You make worthy recommendations to the Parliament and the Government but, on reading the papers, I was a bit concerned to find that your recommendations need not be implemented. You made some points about that, but will you comment on it further? I am new to the process, but it seems amazing to me that you and your team spend a lot of time, effort and money on decisions that can apparently be just put on a shelf.

That is a problem for ombudsmen worldwide. The ombudsman model is based on recommendations with the support of the Parliament for the office-holder. I do not think that, in my time, I have come across a recommendation that has not been fully carried out when I felt that it was serious enough to bring a report to the Parliament. I think that I am about to do that again—all things are timely.

The simplistic way of looking at things is to say that, if the ombudsman says that something should happen, it should happen, but we should unravel that thought. I will give you an example. One of my advisers on a health case advised me that the best possible outcome would be for all multiple births to happen in operating theatres, and they suggested that I make that recommendation. If that recommendation had been from an ombudsman with directive powers and if I had said to Greater Glasgow and Clyde NHS Board, for example, that all multiple births from then on would have to be conducted in operating theatres, the impact across the health service in that area and the cost would have been immense. I would be overriding medical priorities in an area in which I was not fully aware of the circumstances, and I would not be picking up the tab. I would have terrific power and very little responsibility. Elected members should think carefully before giving an unelected official that kind of power.

The power of my office lies in the way in which we present our recommendations and in the willingness of the Parliament to back the ombudsman. I said earlier that we need a procedure for special reports in case what is happening in Northern Ireland should happen here. If a judicial review did not uphold the ombudsman’s ability to bring a special report to the Parliament, we would be in a hell of a mess. Pardon my French, convener. We would all have to start from scratch. At the moment, the issue is not serious, but I can see it becoming serious.

I declare an interest as a member of Aberdeen City Council, until next May. Good morning to all the witnesses.

On the point that you made a moment ago, Mr Martin, if you had made that decision on multiple births and operating theatres, you would also have been doing away with personal choice—which would have led to even more complaints.

I want to ask about the mishandling by elected members of complaints. Mr Walker talked about the guidance for MSPs, but over the years I have come across a number of elected members elsewhere who have suggested that folk should go to the ombudsman straight away—to create a political furore rather than anything else. How often do elected members point folk in your direction without first ensuring that they have gone through due process with the local authority, housing association or health board?

I cannot give you a number off the top of my head, but it is fairly common. Also, I cannot assess people’s motives in doing such a thing, or certainly not in all cases.

One reason for producing the guide for members was to help them and their office staff to understand how and when to come to us. In the past, we have offered training to members and their staff on how to access, and then manage their way through, local authority, housing association and health complaints procedures. Sometimes, elected members in local authorities misunderstand the role of the ombudsman. Many locally elected representatives are here, and I am sure that they will take this in the spirit in which it is meant. Local authority representatives often do not understand local authority procedures. It sometimes comes as a surprise to them that an alternative route exists. A bit of education may be required. However, I cannot prevent someone from sending someone to me for a political purpose.

Perhaps we should say that all councillors, as part of their continuous professional development, should undergo that training.

Obviously, folk realised that you were coming here today, and I have been quite surprised by communications that I have received. I wonder whether you would respond to the following three issues that have been brought to my attention; I stress that they are critiques from others, not from myself. The first one says:

“SPSO principal operational procedure, ‘Complaints Handling Guidance’, has never been evaluated for basic ‘failure of process’”.

The second one says:

“After 9 years, there has been no robust attempt to implement a professional Quality Assurance Management System ... and the SPSO have yet to attain any accreditation from a nationally recognised organisation.”

The third one says:

“Statistics produced by SPSO annual reports have never stood the test of independent interrogation and currently are flawed, being both predominantly cosmetic and statistically insignificant. They fail to accurately inform on SPSO’s performance to the public.”

Would you like to comment?

Yes—welcome to my world. On a light-hearted note, the warmest response that our annual report received came from a body called ombudsman watch. Every public service ombudsman in the United Kingdom has a group of people who follow everything that it does; there are one or two such groups in Scotland, but the one in England and Wales is called ombudsman watch. I was astonished to find on its website that it points to the performance of the ombudsman, the compilation of the annual report and the criticisms that we have made of local authorities as examples for local government ombudsmen in England and for the Welsh ombudsmen, of whom they are particularly disparaging, to follow as best practice. I am sure that there are people in Scotland who are campaigning to get me to do things differently who are quite appalled by that.

Let me take you through those three points. We changed our operational guidance—this is the end of the first year of operation—and as part of that change our internal auditors have been invited to go over it with a fine-toothed comb to ensure that we are doing as best we can, that we use best practice and that we have moved on considerably. So, that is in hand.

The second point might have been right to some extent two years ago, in that there was no robust quality assurance in the organisation before I came in, but Niki Maclean and others have put in a quality assurance programme, which has been externally validated by our external internal auditor, if you follow me. We are looking at that.

On the third point, our statistics stand up to scrutiny. The problem is that they do not make a dramatically terrible case and some people find that upsetting. Some people take the number of contacts that are made with our office, divide that by the number of reports that we lay before Parliament, get a number and say that that is the number of cases that are upheld. If you look at the figures, we are upholding 45 per cent of the valid complaints—those that the 2002 act allows us to look at—in health and 29 per cent of the cases that we can look at in local authorities. That is probably higher than the figures for any other ombudsman in the United Kingdom.

Our statistics stand up to scrutiny when they are looked at accurately; the problem is that they are good in terms of the performance of our office and some people want the figures to look as bad as possible. There are politics involved. Given that I was coming to the committee, if you had not had a mailbag I would have been seriously worried about some of the people who follow my every move.

Who are your internal and external auditors?

Our internal audit is done through a shared service arrangement with the Scottish Legal Aid Board. It works to an annual programme that has been agreed with our audit and advisory committee. Up to this year our external auditors were Grant Thornton, and we have now switched to Audit Scotland. This will be the first year that Audit Scotland will conduct our external audit.

That is useful. Can you give us copies of your former complaint handling guidance and the new complaint handling guidance so that we can compare and contrast?

We would be happy to do that. If any member of the committee would like to come to our office and be talked through what we do, or see how we operate in order to understand procedures better, we would be more than happy to set up a short seminar, or whatever.

The clerks will look at that and see whether there is interest. Thank you for the offer.

I was interested in the figures that you mentioned in your opening remarks about the 45 per cent of complaints that are upheld in health. Do you have a figure in your head for what a healthy degree of upholding would be?

Depending on the sector, I would expect to see somewhere between 10 and 20 per cent. That is because there is no infallibility: even the ombudsman is not infallible and I would expect to see some cases coming through. Some of the cases that I see are complicated medical cases, but some are simple cases such as the calculation of council tax. Errors can happen, but they should be spotted through local processes, so I would be comfortable with figures somewhere around that level. Whether we can get our public services to that level is another matter, but that is where I would like to go.

You are upholding at least twice as many cases as you think you should be.

I think so, and I think that if I had the same powers to look at local authority decision making as I have to look at health decision making, the number of decisions that we uphold in local authorities would be far higher as well.

10:30

In the health section of your report, you refer to turning fewer health cases into full investigations. When you do that, the upheld rate, or uphold rate—I do not know what the adjective is—is 54 per cent, so the figure has gone even higher. Why are you taking fewer health cases when that rate is going upwards?

That means that, overall, the number of reports that I lay before the Parliament has reduced. That is because, when I first came into the office, we reported on almost everything.

Some of you might have heard this anecdote before, but one of the first cases that I saw had a file that was between 18in and 2ft high, which was full of paper. One insert in the file was an eight-page personally dictated letter from the chief executive of a local authority. The case had been with my office for two years and it was about the erection of a 6ft garden fence in the village of California near Falkirk. That report was laid before Parliament. I can understand that you would all have been waiting with bated breath to find out the outcome of the investigation.

That diminished the status of an ombudsman’s report and did not allow Parliament to carry out sufficient scrutiny of important cases, so we developed criteria that are about precedental cases, cases in which a severe injustice needs to be righted and areas from which we think that other bodies—as well as the body concerned—can learn lessons.

We were aided in our decision to reduce the number of reports that are laid before Parliament by a decision taken by Parliament in the previous session to amend the Scottish Public Services Ombudsman Act 2002 to enable me to lay a special report—not the kind of special report that I talked about previously—on what are technically called discontinued investigations, which I would call decisions. I can now publish those in summary form by laying them in a report to Parliament, which means that I can make them public. It sounds a bit silly but, although we are reducing the number of reports—with a capital R—to Parliament, we are reporting more things to Parliament.

You mentioned that you would like Parliament to do more scrutiny of the work that you produce. Are there additional things that you would like? You talk about investigating maladministration, service failure and clinical judgment when it comes to the NHS, but are there other categories that you feel would help you do a better overall job? If you could classify certain types of complaint as a fourth option, you would provide a broader, more inclusive service.

I will choose my words carefully. I think that the recent decisions to enable planning decisions to be made by planning officers rather than elected members have, in the public mind, meant that there is a bureaucratic decision-making process. I cannot look at the decisions that are made, for example in planning, unless there has been maladministration, so there is scope for considering enabling me to look, on my initiative, at cases in local authorities in particular in which there has not been maladministration or service failure. That is a very controversial statement in ombudsmanry—there is such a word, by the way; I did not think that there was, but there is.

In an office such as ours, where we see trends and so on, enabling us to go and investigate whether there is a trend or a set of decisions that should be looked at would be an important power for an ombudsman.

Would maladministration of the planning process include allegations of politicisation of the planning process?

Allegations have been made about the politicisation of the planning process for as long as I can remember. If someone were to come to us arguing that the planning process was politicised, the first thing that we would do is look at what processes and procedures were in place to enable the decision to be made. Provided that those had been adopted appropriately and there had been no maladministration, I could not look at the matter. However, if a process had been body-swerved or had not been followed, that would be maladministration and I could look at it.

Just to add to the list of declarations, I declare an interest as a member of Grampian joint police board. Can you comment on the possible transfer of functions of the Police Complaints Commissioner for Scotland to your office?

Given that we are all declaring interests, the committee may or may not be aware that I was the first Police Complaints Commissioner for Scotland, so I have strong views on the matter. We have responded to the Government’s plans for a single police force, but only in relation to the impact on the SPSO. Two options that the Government has put forward would impact on us.

I can see no technical reason why non-criminal police complaints could not be handled by the SPSO. I can also see advantage in it. One advantage is that the SPSO’s powers are far greater than the PCCS’s powers. The PCCS’s powers are to look at the manner in which police complaints have been handled. A very tight view of that, which I believe is the view of the current commissioner, is that the role of the PCCS is to look at the administration of that. The SPSO can look at service failure as well as maladministration, therefore we could probably look at more. I am confident that we would have the expertise to do that, having built up the office previously. The expertise that is currently in the PCCS could easily be absorbed into the SPSO.

Having said that, there is a much bigger debate to be had about the governance of any move towards a single police force or two or three forces. The issue is that there has to be a check and balance system that ensures that the force itself comes under scrutiny. We would do well to look at the models across the water. We should look at the Police Ombudsman for Northern Ireland and at what is happening in Ireland itself, and also at the Independent Police Complaints Commission model in England and Wales. We should not start from the premise of asking, “What organisations currently exist in Scotland and how can we fit them in?”

I think that a single force is perfectly doable, but I should not say that as an ombudsman, so that is a personal view. However, it is doable only if the appropriate governance arrangements are in place and operate as a check and balance against the police force and its operation.

I thank panel members for their evidence. I suspend the meeting for a couple of minutes to allow the witnesses to leave.

10:37 Meeting suspended.

10:39 On resuming—