Written Evidence from the Scottish Public
Services Ombudsman (SPSO)
1. INTRODUCTION
1.1 My office was established in 2002 to
provide a "one-stop-shop" for consideration of complaints
about devolved public services in Scotland. This memorandum seeks
to set out:
— the background to the setting
up of my office and the legislative framework within which it
was established;
— key issues which faced us in
setting up the office;
— new developments which we have
had to address since we were established;
— key lessons from our experience;
and
— taking account of the above,
our comments on the Public Services Ombudsman (Wales) Bill.
2. LEGISLATIVE
BACKGROUND
2.1 The rationale for the establishment
of the new office of the Scottish Public Services Ombudsman is
set out clearly in paragraphs 2 and 3 of the Policy Memorandum
for the Bill that was presented to the Scottish Parliament. It
states:
"The key policy objective of the Bill is
to establish a one-stop shop headed by a new Scottish Public Sector
Ombudsman to deal with complaints currently dealt with by the
Scottish Parliamentary Commissioner for Administration (SPCA),
the Health Service Commissioner for Scotland (the `Health Service
Ombudsman'), the Commissioner for Local Administration in Scotland
(the `Local Government Ombudsman') and the Housing Association
Ombudsman for Scotland. The Ombudsman will also take over:
— The Mental Welfare Commission's
function of investigating the handling of complaints relating
to mental health; and
— Complaints against Scottish
Enterprise and Highlands and Islands Enterprise whose External
Complaints Adjudicators will be abolished.
The Bill aims to establish a public sector complaints
system which is open, accountable, easily accessible to all and
has the trust of the Scottish public. This will be achieved by
way of:
— A simpler and more effective
means for members of the public to make complaints about maladministration
in the public sector;
— A re-enforcement of the Ombudsman's
independence from the authorities within his or her jurisdiction;
and
— Improved publicity and transparency
of the Ombudsman's functions."
2.2 It was proposed that the Ombudsman would
have powers to lay reports before the Scottish Parliament, in
addition to the requirement to lay an Annual Report. These include
reports on formal investigations into complaints; special reports
where the Ombudsman believes that, following the issuing of a
report, an injustice or hardship has not been remedied; and any
other reports relating to the carrying out of the Ombudsman's
functions that s/he thinks are necessary.
2.3 An important dimension of the Bill was
the proposal that members of the public could make a complaint
to the Ombudsman without the necessity of referring that complaint
to a Member of the Scottish Parliament or other elected representative
in the first instance.
2.4 The debates in the Scottish Parliament
on the Bill, specifically in relation to matters that could be
investigated, resulted in an extension of the powers of the Ombudsman
beyond the investigation of complaints against the exercise of
administrative functions of a public authority to include service
failure (defined as: "(a) any failure in a service provided
by the authority; and (b) any failure of the authority to provide
a service which it was a function of the authority to provide").
Previously this power only existed in relation to NHS bodies and
providers.
2.5 The key policy objective of the Bill
and subsequent parliamentary debates were put into effect by the
Scottish Public Services Ombudsman Act 2002. This Act created
a number of "givens" for the new service:
— That it would perform all the
functions of the predecessor Ombudsmen;
— That it would have an extended
remit (to include mental health complaints, complaints about the
Enterprise bodies and other areas such as the administration of
schools);
— That in a number of respects
it would work in new ways (simpler and more effective ways for
making complaints, more accessible, greater transparency, improved
publicity, etc);
— That it would take over the
staff of the predecessor Ombudsmen whose terms and conditions
would be protected under TUPE principles.
2.6 These givens were reinforced by the
duties that the Scottish Parliamentary Corporate Body set for
the Ombudsman and the three (part-time) Deputy Ombudsmen appointed
under the Act:
— Managing the merger of the three
existing offices into one new office;
— Managing the day-to-day running
of the new office;
— Setting up appropriate arrangements
for providing advice to members of the public on complaints procedures;
— Dealing with complaints by members
of the public;
— Promoting public awareness of
the Ombudsman's role in dealing with complaints;
— Promoting good administrative
practice by public authorities;
— Laying before the Parliament
an annual general report on the exercise of the Ombudsman's functions;
and
— Laying before the Parliament
special reports on cases of unremedied injustice or hardship.
In exercising these duties the Ombudsman and
Deputy Ombudsmen are independent of any member of the Parliament,
any member of the Scottish Executive and the Parliamentary Corporation.
3. IMPLEMENTATION
AND TRANSITION
PHASE
3.1 When the Ombudsman and Deputy Ombudsmen
assumed their powers on 23 October 2002, it became apparent that
there were a number of barriers to implementing the objectives
set for the new service:
— The staff of the predecessor
Ombudsmen were based in three different locations, none of which
was large enough to accommodate the new one-stop-shop or suitable
for receiving members of the public;
— The predecessor services had
different staffing structures, working practices and case-handling
processes, none of which was fully adapted to meeting the requirements
placed on the new service;
— Staff of the predecessor services
had substantially different terms and conditions, and the practices
for appraisal and promotion also varied considerably;
— Staff of the predecessor services
would require training in the new legislation under which they
were to operate, in dealing with complaints made in person or
by members of the public with special language or other needs,
and in raising awareness of the service; and
— The predecessor services had
adopted IT to varying degrees and the IT systems that were in
use were not compatible or capable of facilitating the delivery
of a modern complaints handling system for the new office.
3.2. Urgent tasks facing the new Ombudsman
and Deputy Ombudsmen therefore included:
— Arranging a single telephone
access point for members of the public and others contacting the
service;
— Organising the design and printing
of new leaflets to provide information about the service as well
as a new complaints form;
— Issuing initial Guidelines to
listed authorities drawing their attention to the duties placed
on them under the Act (eg to include information on the Ombudsman's
service in their documentation and the time limits for making
a complaint);
— Identifying, acquiring and fitting-out
office premises in a single location suitable to accommodate the
new service;
— Establishing a management structure
to develop policy and strategy and to manage the new service;
— Creating a new complaints handling
process based on the requirements of the legislation and good
practice;
— Identifying what new procedures
were required, for example, to deal with oral complaints and to
improve publicity and transparency;
— Agreeing new working practices
and staffing structures adapted to meeting the needs of the new
service;
— Harmonising staff terms and
conditions, not only on grounds of equity, but also to establish
an integrated and enhanced service fit to meet the requirements
placed on it;
— Agreeing new HR policies for
the new service;
— Establishing new IT systems
to meet the needs of the new case consideration process and to
deliver the new service to the public;
— Producing further guidance for
listed authorities in carrying out their duties under the Act;
— additional training needed
for existing staff;
— expertise required to be
bought in to provide support services (eg HR, IT, Finance/Audit);
— additional staff required
to deliver the enhanced service.
4. NEW DEVELOPMENTS
4.1 Since the new office of the SPSO was
set up in October 2002 there have been important developments
that will have an impact on the powers and jurisdiction of the
Ombudsman. These include:
— Health. It has been announced
that the second stage of the internal NHS complaints process is
to be abolished in Scotland which it is anticipated will substantially
increase the number of cases coming to the Ombudsman.
— Further and Higher Education.
The Further and Higher Education (Scotland) Bill currently making
its way through the Scottish Parliament includes provision to
bring complaints about Scottish FE and HE institutions within
the jurisdiction of the SPSO. The Bill as introduced gives students,
however funded, and other aggrieved persons the right to refer
complaints about colleges or universities to the Ombudsman.
4.2 Other proposals to reform social work
complaints arrangements and the planning system in Scotland, replace
the Water Industry Commissioner with a Water Industry Commission,
and create new transport bodies will all impact on the future
work of the SPSO.
5. KEY LESSONS
5.1 There are a number of lessons that can
be learned from the experience of the SPSO. These include:
5.1.1 The time taken and commitment needed
to merge former offices and processes and make the full transition
to a new combined Ombudsman service should not be under-estimated.
5.1.2 Similarly there is a considerable
challenge in continuing to provide a service in all the different
sectors while, at the same time, establishing a new combined service
based on new legislation.
5.1.3 In building the new service it is
important to bear in mind the aspirations of the legislators and
to establish procedures and processes based on the key principles
and values.
5.1.4 Cultural and procedural differences
between and within the different sectors of public service need
to be reduced in order for greater consistency across the delivery
of public services to be achieved.
5.1.5 The joint delivery of public services
has implications for joint responsibility when problems do arise.
More work is needed to ensure greater continuity and co-ordination
of complaint handling processes across different sectors of public
service.
5.1.6 The handling of complaints should
not be seen as a separate activity at the end of a process. Instead
it should be integrated into the central aim of developing and
delivering better public services.
5.1.7 The Ombudsman can work with public
authorities and provide guidance in order to help reduce the possibility
of complaints arising and setting standards, principles and models
of good practice in complaint handling and administrative practice.
There is also considerable scope for sharing of experience and
training with the different sectors.
5.1.8 The Ombudsman has an important role
to play in helping to raise public awareness of the right to make
complaints and note concerns about services with public bodies.
This is a task that can be undertaken with other key agencies
especially in making contact with hard-to-reach groups.
5.1.9 Sufficient time and resource is required
in order to direct some of the activities of the Ombudsman towards
a more proactive role that will enhance understanding and help
prevent complaints from arising. This requires a shift in emphasis
from simply reacting to complaints that are received.
5.1.10 Working with other public service
Ombudsmen, where appropriate, and collaborating with other Commissioners
is a valuable way of improving the effectiveness and accessibility
of the service and reducing the confusion often experienced by
members of the public when they wish to pursue a complaint.
5.1.11 Consideration must be given to changes
in the external political context so that the Ombudsman's service
is up-to-date with policy developments and factors that may impact
on its role and function.
5.1.12 The merger of Ombudsmen's offices
to create a single service for complaints against public services
should not be seen as a single event but rather as an ongoing
process of change and improvement of service in line with public
expectations and needs.
6. COMMENTS ON
THE PUBLIC
SERVICES OMBUDSMAN
(WALES) BILL
6.1 In our view, there have been clear benefits
arising from the establishment of a single Ombudsman service dealing
with devolved public services in Scotland. This approach has been
widely endorsed and supported in helping to provide greater simplicity,
clarity and accessibility for members of the public. There is
evidence of the "one-stop-shop" working in practice,
for example in complaints about care for the elderly. Such a complaint
can now be dealt with by the SPSO while in the past it may have
involved three separate Ombudsmen for Local Government, Health
and Housing.
6.2 We therefore welcome the proposal to
establish a similar one-stop-shop service in Wales. We consider
that the Public Services Ombudsman (Wales) Bill is very clearly
structured and comprehensive in its coverage. There are considerable
similarities with the powers and provisions in the Scottish Public
Services Ombudsman Act 2002. In particular, we would endorse:
6.2.1 The clear statement of the arrangements
for appointment of the Ombudsman and the robust provisions to
ensure his/her independence (Schedule 1 to the Bill)
6.2.2 The clarity with which the Ombudsman's
powers of investigation and jurisdiction are set out (Part 2 of
the Bill)
6.2.3 The highlighting of an important and
proactive role for the Ombudsman in issuing guidance to listed
authorities and improving good administrative practices in Wales.
This is in line with the practice of the SPSO.
12 January 2005
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