Armed Forces (Service Complaints and Financial Assistance) Bill (HC Bill 174)

A

BILL

[AS AMENDED IN PUBLIC BILL COMMITTEE]

TO

Make provision about service complaints; about financial assistance for the
armed forces community; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Service complaints

1 Creation of office of Service Complaints Ombudsman

(1) After section 365A of the Armed Forces Act 2006 insert—

Service Complaints Ombudsman

365B 5Service Complaints Ombudsman

(1) The office of Service Complaints Ombudsman is established.

(2) The Ombudsman is to be appointed by Her Majesty on the
recommendation of the Secretary of State.

(3) A person may not be appointed as the Ombudsman if the person is—

(a) 10a member of the regular or reserve forces, or

(b) employed in the civil service of the State.

(4) The Ombudsman holds and vacates office in accordance with the terms
of his or her appointment.

(5) The Ombudsman may authorise a person working for the Ombudsman
15to exercise any function of the Ombudsman on his or her behalf.

(6) The Ombudsman is not to be regarded—

(a) as the servant or agent of the Crown, or

Armed Forces (Service Complaints and Financial Assistance) BillPage 2

(b) as enjoying any status, immunity or privilege of the Crown.

(2) The office of Service Complaints Commissioner is abolished.

(3) Accordingly, in the Armed Forces Act 2006, omit section 366 and the italic
cross-heading immediately preceding it.

2 5Reform of system for redress of individual grievances

(1) After section 340 of the Armed Forces Act 2006 insert—

Part 14A Redress of service complaints

Service complaints
340A 10Who can make a service complaint?

(1) If a person subject to service law thinks himself or herself wronged in
any matter relating to his or her service, the person may make a
complaint about the matter.

(2) If a person who has ceased to be subject to service law thinks himself or
15herself wronged in any matter relating to his or her service which
occurred while he or she was so subject, the person may make a
complaint about the matter.

(3) In this Part, “service complaint” means a complaint made under
subsection (1) or (2).

(4) 20A person may not make a service complaint about a matter of a
description specified in regulations made by the Secretary of State.

340B Procedure for making a complaint and determining admissibility

(1) The Defence Council may make regulations (referred to in this Part as
“service complaints regulations”) about the procedure for making and
25dealing with a service complaint.

(2) Service complaints regulations must make provision—

(a) for a service complaint to be made to an officer of a specified
description;

(b) about the way in which a service complaint is to be made
30(including about the information to be provided by the
complainant);

(c) that a service complaint may not be made, except in specified
circumstances, after the end of the specified period.

“Specified” means specified in the regulations.

(3) 35The period referred to in subsection (2)(c) must be at least three months
beginning with the day on which the matter complained of occurred.

(4) Service complaints regulations must make provision—

(a) for the officer to whom a service complaint is made to decide
whether the complaint is admissible and to notify the
40complainant of that decision;

Armed Forces (Service Complaints and Financial Assistance) BillPage 3

(b) for the Service Complaints Ombudsman, on an application by
the complainant, to review a decision by the officer to whom a
service complaint is made that the complaint is not admissible;

(c) for securing that the Ombudsman’s decision in relation to
5admissibility, on such a review, is binding on the complainant
and the officer to whom the complaint was made.

(5) For the purposes of subsection (4), a service complaint is not admissible
if—

(a) the complaint is about a matter of a description specified in
10regulations made under section 340A(4),

(b) the complaint is made after the end of the period referred to in
subsection (2)(c) and the case is not one in which circumstances
referred to in that provision apply, or

(c) the complaint is not admissible on any other ground specified
15in service complaints regulations.

(6) Nothing in this Part with respect to the provision that must or may be
made by service complaints regulations is to be taken as limiting the
generality of subsection (1).

Decisions and appeals
340C 20Decisions on service complaints

(1) Service complaints regulations must provide for the Defence Council to
decide, in the case of a service complaint that is found to be admissible,
whether the complaint is to be dealt with—

(a) by a person or panel of persons appointed by the Council, or

(b) 25by the Council themselves.

(2) The regulations must provide for the person or panel appointed to deal
with the complaint or (in a subsection (1)(b) case) the Defence
Council—

(a) to decide whether the complaint is well-founded, and

(b) 30if the decision is that the complaint is well-founded—

(i) to decide what redress (if any), within the authority of
(as the case may be) the person, the persons on the panel
or the Defence Council would be appropriate, and

(ii) to grant any such redress.

(3) 35The Defence Council must not appoint a person or panel to deal with a
service complaint unless—

(a) the person is, or all the persons on the panel are, authorised by
the Council to decide the matters mentioned in subsection (2)
and to grant appropriate redress, or

(b) 40the Council propose to authorise that person or those persons
for those purposes.

(4) Provision made by virtue of subsection (1) is subject to regulations
made under section 340E(1) (eligibility for appointment, requirements
relating to independent decision-making, etc).

Armed Forces (Service Complaints and Financial Assistance) BillPage 4

340D Appeals

(1) Service complaints regulations must make provision enabling the
complainant in relation to a service complaint to appeal to the Defence
Council against a decision on the complaint, where the decision was
5taken by a person or panel appointed by virtue of section 340C(1)(a).

(2) The regulations may make provision—

(a) about the way in which an appeal is to be brought (including
about the information to be provided by the complainant);

(b) that an appeal may not be brought, except in circumstances
10specified in the regulations, after the end of the period so
specified;

(c) requiring the Defence Council to decide any question relating to
whether an appeal has been brought before the end of the
period referred to in paragraph (b) or (if not) whether
15circumstances referred to in that paragraph apply;

(d) requiring the Defence Council to decide whether an appeal is to
be determined—

(i) by a person or panel of persons appointed by the
Council, or

(ii) 20by the Council themselves.

(3) The period referred to in subsection (2)(b) must be at least six weeks
beginning with the day on which the complainant received notification
of the decision appealed against.

(4) The Defence Council must not appoint a person or panel to determine
25an appeal unless—

(a) the person is, or all the persons on the panel are, authorised by
the Council to determine the appeal and to grant appropriate
redress, or

(b) the Council propose to authorise that person or those persons
30for those purposes.

(5) Provision made by virtue of subsection (2)(d) is subject to regulations
made under section 340E(1) (eligibility for appointment, requirements
relating to independent decision-making, etc).

(6) Service complaints regulations must make provision—

(a) 35for the Service Complaints Ombudsman, on an application by
the complainant, to review a decision by the Defence Council
that an appeal cannot be proceeded with because—

(i) it was not brought before the end of the period referred
to in subsection (2)(b), and

(ii) 40the case is not one in which circumstances referred to in
that provision apply;

(b) for securing that the decision of the Ombudsman, on such a
review, is binding on the complainant and the Defence Council.

340E Further provision about persons and panels deciding service
45complaints etc

(1) The Secretary of State may by regulations—

Armed Forces (Service Complaints and Financial Assistance) BillPage 5

(a) provide that persons of a specified description may not be
appointed by virtue of section 340C(1)(a) or 340D(2)(d)
(whether or not as part of a panel);

(b) require the Defence Council, in relation to any service
5complaint of a specified description, to act by virtue of section
340C(1)(a) or 340D(2)(d) so as to appoint—

(i) a person who is independent, or of a specified
description, or both;

(ii) a panel that satisfies one or more of the requirements
10listed in subsection (2).

(2) Those requirements are—

(a) all of the members of the panel must be independent;

(b) the panel must include at least a specified number or proportion
of independent members;

(c) 15the panel must include a person of a specified description.

(3) Where a requirement within subsection (2)(b) has effect, the regulations
may also require specified functions of the panel to be exercised by the
independent members of the panel.

(4) For the purposes of this section, a person (including a member of a
20panel) is independent if the person—

(a) is not a member of the regular or reserve forces or employed in
the civil service of the State, and

(b) is included in a list maintained for the purposes of this section
by the Secretary of State.

(5) 25In this section, “specified” means specified in the regulations.

Investigation, delegation and time limits
340F Investigation of complaints and delegation of Defence Council
functions

(1) The Defence Council may authorise a person to investigate a particular
30service complaint—

(a) on the Council’s behalf, or

(b) on behalf of a person or panel of persons appointed to deal with
a service complaint or to determine an appeal relating to a
service complaint.

(2) 35Service complaints regulations may authorise the Defence Council to
delegate to any person, to such extent and subject to such conditions as
the Council consider appropriate, any of the Council’s functions under
the preceding provisions of this Part.

(3) Subsection (2) does not apply to—

(a) 40the Defence Council’s function of making service complaints
regulations,

(b) the Council’s function of dealing with a service complaint or
determining an appeal, or

(c) any function of the Council by virtue of section 340C(3)(b) or
45340D(4)(b) in connection with authorising a person to make
decisions or determinations and to grant redress.

Armed Forces (Service Complaints and Financial Assistance) BillPage 6

(4) Subsection (2) does not affect the application of section 1(5) or (7) of the
Defence (Transfer of Functions) Act 1964 (discharge by Service Boards
of Defence Council functions) in relation to the Defence Council’s
functions under the preceding provisions of this Part.

340G 5Service complaints: other time limits

(1) Service complaints regulations may—

(a) impose time limits for taking any step (in addition to any time
limit for which this Part provides);

(b) specify circumstances in which a time limit does not apply;

(c) 10make provision about the consequences of not taking a step
within a time limit.

(2) The provision that may be made by virtue of subsection (1)(c) in
relation to a particular time limit includes provision authorising a
person specified in the regulations to decide that a service complaint,
15or an appeal against a decision on a service complaint, cannot be
proceeded with because of a failure to take a step within that time limit.

(3) Where service complaints regulations make provision referred to in
subsection (2), the regulations may also make provision—

(a) for the Service Complaints Ombudsman, on an application by
20the complainant, to review a decision that a service complaint
or an appeal cannot be proceeded with because of the failure to
take the step within the time limit;

(b) for securing that the Ombudsman’s decision on such a review
is binding on the complainant and the person who made the
25decision to which the review relates.

Investigations by Service Complaints Ombudsman
340H Ombudsman investigations

(1) The Service Complaints Ombudsman may investigate—

(a) a service complaint;

(b) 30an allegation of maladministration in connection with the
handling of a service complaint including an allegation that the
handling of a service complaint was inappropriately delayed;
and

(c) an allegation of inappropriate delay in relation to a person prior
35to that person making a formal complaint, or an allegation
relating to the staying of a complaint,

where the complainant makes an application to the Ombudsman.

(2) An application to the Ombudsman—

(a) must be made in writing, and

(b) 40must contain the information specified in regulations made by
the Secretary of State.

(3) The Ombudsman may not investigate an allegation or service
complaint unless the Ombudsman is satisfied—

(a) that a decision has been made, in accordance with service
45complaints regulations made by virtue of section 340C, on the

Armed Forces (Service Complaints and Financial Assistance) BillPage 7

complaint or the complaint to which the allegation of
maladministration relates, and

(b) if the decision is one in respect of which service complaints
regulations made by virtue of section 340D enable an appeal to
5be made, that an appeal against the decision has been made and
determined.

(4) The purpose of an investigation is to decide—

(a) whether the service complaint referred to in subsection (1)(a) is
well founded or any maladministration has occurred, and

(b) 10if so, whether it has or could have resulted in injustice being
sustained by the complainant.

(5) The Secretary of State may by regulations provide that an application
may not be made to the Ombudsman, except in circumstances specified
in the regulations, after the end of the period specified in the
15regulations.

(6) The period referred to in subsection (5) must be at least six weeks
beginning with the date on which the complainant is notified—

(a) of the determination of an appeal against the decision on the
complaint, or

(b) 20if the decision on the complaint is not one in respect of which
service complaints regulations made by virtue of section 340D
enable an appeal to be made, of that decision.

(7) It is for the Ombudsman to determine whether an application has been
made in accordance with this section.

(8) 25Where the Ombudsman has investigated an application relating to a
service complaint, the Ombudsman may not investigate a subsequent
application relating to the same complaint except in circumstances
specified in regulations made by the Secretary of State.

340I Procedure on Ombudsman investigations

(1) 30It is for the Service Complaints Ombudsman to determine whether to
begin, continue or discontinue an investigation.

(2) The Secretary of State may make regulations about the procedure to be
followed in an investigation.

(3) Subject to subsection (2), the procedure for carrying out an
35investigation is to be such as the Ombudsman considers appropriate in
the circumstances.

(4) In particular, the Ombudsman may make such inquiries as the
Ombudsman considers appropriate.

(5) The Secretary of State may by regulations—

(a) 40impose time limits for the taking by the Ombudsman or the
complainant of any step specified in the regulations;

(b) specify circumstances in which a time limit does not apply.

(6) Where—

(a) the Ombudsman carries out an investigation in connection with
45the handling of a service complaint, and

Armed Forces (Service Complaints and Financial Assistance) BillPage 8

(b) before the complaint was made, the matter to which it relates
was considered in accordance with a process for dealing with
matters of that kind,

the Ombudsman may for the purposes of the investigation consider
5any alleged maladministration in connection with that process.

340J Power to require information, documents and evidence

(1) The Service Complaints Ombudsman may, for the purposes of an
investigation, require a person to provide—

(a) documents in the person’s possession or control, or

(b) 10other information in the person’s possession or control.

(2) The Ombudsman has the same powers as the High Court (or, in
Scotland, the Court of Session), for the purposes of an investigation, in
respect of—

(a) the attendance and examination of witnesses (including the
15examination of witnesses abroad), and

(b) the production of documents.

(3) A person may not be required under this section to do anything that the
person could not be compelled to do in civil proceedings before the
High Court (or, in Scotland, the Court of Session).

340K 20Obstruction and contempt

(1) This section applies if a person—

(a) without lawful excuse, obstructs the discharge of any of the
Service Complaints Ombudsman’s functions relating to an
investigation, or

(b) 25does any act in relation to an investigation that would constitute
contempt of court if the investigation were proceedings in the
High Court (or, in Scotland, the Court of Session).

(2) The Ombudsman may certify the obstruction or act to the High Court
(or, in Scotland, the Court of Session).

(3) 30The court may inquire into the certified obstruction or act.

(4) If the court, having heard any witness on behalf of or against the person
and any statement in the person’s defence, is satisfied that the person—

(a) without lawful excuse, obstructed the discharge of any of the
Ombudsman’s functions relating to the investigation, or

(b) 35did the act referred to in subsection (1)(b),

it may deal with the person in any way in which it could deal with the
person if he or she had committed contempt in relation to the court.

(5) In this section, “act” includes an omission and references to the doing
of an act are to be read accordingly.

40Reports of investigation
340L Report and recommendations

(1) The Service Complaints Ombudsman must, after carrying out an
investigation, prepare a report setting out the Ombudsman’s findings.

Armed Forces (Service Complaints and Financial Assistance) BillPage 9

(2) Where the Ombudsman finds maladministration in connection with
the handling of the service complaint to which the investigation relates,
the report must also set out the Ombudsman’s recommendations (if
any) as a result of that finding.

(3) 5The Ombudsman may for the purposes of subsection (2) make any
recommendations that the Ombudsman considers appropriate,
including recommendations for the purpose of remedying—

(a) the maladministration, and

(b) any injustice that the Ombudsman considers has or could have
10been sustained, in consequence of the maladministration, by the
complainant.

(4) The report must include the Ombudsman’s reasons for each of the
findings and recommendations.

(5) The Ombudsman must send a copy of the report to—

(a) 15the Defence Council,

(b) the complainant, and

(c) any other persons specified, or of a description specified, in
regulations made by the Secretary of State.

(6) The Ombudsman may send a copy of the report to any other persons
20the Ombudsman considers appropriate.

(7) The Secretary of State may make regulations with respect to reports
under this section; and the regulations may in particular include—

(a) further provision about the preparation of reports;

(b) provision for the correction of accidental errors in reports;

(c) 25provision about obligations (including obligations of
confidentiality) that may be imposed on persons to whom
reports are sent.

340M Action following receipt of report

(1) The Defence Council must—

(a) 30consider a report under section 340L,

(b) notify the Service Complaints Ombudsman and the
complainant, giving reasons in writing, of the action (if any) the
Council decide to take in response to the findings and any
recommendations contained in the report, and

(c) 35where the Council decide to reject a recommendation, notify the
Ombudsman and the complainant, giving reasons in writing for
the rejection.

(2) Where the Defence Council decide that a service complaint should be
reconsidered to any extent, they must decide whether the
40reconsideration is to be carried out—

(a) by a person or panel of persons appointed by the Council, or

(b) by the Council themselves;

but this is subject to any provision made by virtue of subsection (6).

(3) The Defence Council must not appoint a person or panel to reconsider
45a service complaint unless—