Defence Committee - Minutes of EvidenceHC 720

Back to Report

Oral Evidence

Taken before the Defence Committee

on Wednesday 21 November 2012

Members present:

Mr James Arbuthnot (Chair)

Mr Julian Brazier

Mrs Madeleine Moon

Penny Mordaunt

Sandra Osborne

Bob Stewart

Ms Gisela Stuart

________________

Examination of Witnesses

Witnesses: Dr Susan Atkins, Service Complaints Commissioner for the Armed Forces, and Darren Beck, Head of Office, Office of the Service Complaints Commissioner for the Armed Forces, gave evidence.

Chair: Dr Atkins, welcome back to the Defence Committee. You are always most welcome in front of us, and we are grateful to you for coming to give evidence. Would you like to introduce Mr Beck?

Dr Atkins: Darren Beck, ladies and gentlemen of the Committee, is my head of office. He was not in that post when I appeared before you previously, but he did come with me to the Armed Forces Bill Committee and some of you may have met him then.

Q1 Chair: Thank you very much. You have been in post for four years, and you have produced four annual reports. Over those four years, what do you think is the best thing you have managed to achieve?

Dr Atkins: There are two things, and they are both partial successes. The first is that I believe that I have changed the views of the services about independent oversight. You will remember when I was first appointed there was a lot of reluctance, a bit of concern and some resistance to having an independent oversight. Now, not only has the Chief of Defence Staff said that I am an integral part of modern defence, but over just the past few weeks a number of the Service Chiefs who are most intricately involved with service personnel matters have said that without me they would never have made the changes and improvements that have been made. I think they are more comfortable and they value the work that we do. That is a big achievement.

Bob Stewart: Not a partial success but a notable one.

Chair: Bob Stewart is muttering that that is not a partial success, but a notable success, and I think we would all agree with that.

Dr Atkins: I think the second thing is beginning to change the culture. When I was first appointed, people did not know how many complaints were made, by whom, about what or where, and frankly it was not very high on priorities. One of the cultural changes I wanted was to stop people who made complaints being perceived as trouble makers. These were service personnel who were giving of their all for their country, and if things went wrong, they needed to be treated properly. There were lessons to be learned in order to prevent such occurrences in the future.

I would say that they are partial successes because there is still a lot more to do. As you know, one of the recommendations was for an Armed Forces ombudsman, and that has not been accepted. I think we have a way to go, but I think those are the two key achievements.

Chair: We will come on to some of those things. I think it has been because of your approach-how you have shown sensitivity to the chain of command, but you have also shown a real determination to work for the Armed Forces in general. That must have been a difficult tension for you to resolve, but you have clearly been extremely successful at it.

Dr Atkins: Thank you.

Q2 Chair: You say in your most recent report that, for the fourth year running, you are "unable to report… that… the Service complaints system is working efficiently, effectively or fairly." Why is that?

Dr Atkins: It is largely because when people make service complaints they are not dealt with in a timely manner, and delay is the key reason for unfairness. In many cases, it means that by the time a complaint is decided the redress that the individual wants can no longer be achieved. There can be occasions where people make complaints about individuals who, by the time the case is investigated and decided, have left the service. We have had occasions when people who want to complain that they are being discharged find that they are discharged, and it is a matter of years later that the services say a mistake has been made. A number of service personnel and their families then have huge choices to make. Do they go back to the career that they loved and felt they were doing well with a chain of command that they trusted, or do they give up? In many cases, they have to give up a home, and their career, and leave the services with a bitter feeling in their heart and mind.

Delay is a problem and it is the cause of unfairness to people who are complained of. Increasingly over the past few years, I have had complaints from people who have been the subject of a complaint, and the stress on them and their families is unimaginable. Mental health is one of the issues in relation to service complaints and delay.

So that is the lack of fairness. There is a lack of efficiency because the system is extremely complex. In my view, it is designed to give every member of the forces who makes a complaint a Rolls-Royce system with all the protections that are not to be found in the civilian world. There are cases, such as discharges, where other civilian employees can go to an employment tribunal-unfair selection for redundancy is another example-and those avenues are not open to service personnel. So there are cases where there should be protections, but the very protections designed to ensure fairness actually work against individuals. They also take too many resources. When I put forward a proposal for an ombudsman, it was part of a package: having an independent, external right of appeal at the end of the process would enable the system to be simplified. The services are trying to make the system work, but they are doing so by putting in more and more resources. In a period of financial constraints, that is not a sensible option.

Chair: We were going to ask about your suggestion of an ombudsman later, but since you have raised it, I shall ask Sandra Osborne to raise this issue now.

Q3 Sandra Osborne: Why did the Service Personnel Board not support your proposal for an ombudsman? What is the reason?

Dr Atkins: They must answer for themselves-the Minister can answer for them-but I believe there was some resistance to having an external body as the final port of call or final route for appeal. That is why, in relation to the Chairman’s question and to Mr Stewart, I said I thought it was a partial success. Some of the Service Chiefs said they didn’t quite understand what an ombudsman did, but they were sure they didn’t want one. Some other people have said to me that they would be very comfortable with my being the ombudsman, but, as you know, I shall be stepping down at the end of my second term, and when there was no longer "the good doctor", they weren’t too sure what would happen. I think it is fear of what might happen, rather than the arguments that I have put forward now.

Q4 Sandra Osborne: This whole service came about, as I understand it, in legislation in 2006 in the context of the Deepcut inquiry, which had been ongoing for some time. I had a constituent who was affected-not from Deepcut, but from elsewhere. I thought the whole idea was to ensure that that kind of situation did not arise again and that there would be independence in the system, which is what an ombudsman role does. Maybe it is a bit of an unfair question, but do you feel that the intentions of the report that came out after the Deepcut inquiry and the legislation have been followed up properly?

Dr Atkins: The recommendation of the Defence Committee in its 2005 "Duty of Care" report and Sir Nicholas Blake’s Deepcut review report was that there should be an oversight body-a commissioner or an ombudsman-to fulfil a number of functions. One was to oversee and ensure fair handling of individual complaints to ensure that families and recruits who tried in the context of Deepcut to raise their concerns-and were assured that everything was all right and it wasn’t-had somebody external and independent that they could go to, who didn’t take no for an answer, and who kept coming back and asking more questions. But it was also to identify patterns and trends, because you can decide an individual case on its individual facts and not perceive that there is an issue to be tackled-that what is alleged to be occurring here is also occurring here, and is exactly the same as what occurred in the past. That is what an ombudsman does.

I believe-and the Chairman was very kind to say that this was so-that because of my reports there have been significant improvements in the system. However, as I identified in my reports, there is a fairness gap in relation to individual complaints. Complainants-and I know some of them have written to you-come to me in the expectation that I can oversee and intervene to ensure that their complaint is dealt with in a speedy and proper way, and that it is not too late by the time their case is decided. What I don’t have is the ability to bring about that change. I can raise questions and ask for issues to be addressed, but I cannot guarantee it. The ombudsman would fulfil the function that both reports address and which is absolutely vital. What an ombudsman can do and what I can’t do is make a decision on a case.

Let me give you an example. People can come to me with a matter that is quite old, that occurred a long time before the three-month time limit. There is a three-month time limit. If I put that complaint into the system and the service decides that it is out of time and that there are no just and equitable reasons for accepting it, it can take a lot of resources to get to that point.

I tend not to put those cases in if I am not satisfied with the reasons given as to why no complaint has been made sooner. If I refuse to put them in-because that is an inefficient use of service resources-then that person can come back to me again and again and again. Because I don’t have the power to make decisions-and I am a statutory office holder-I must not fetter my discretion, I find it very difficult to say no. Quite a lot of our resources are spent in dealing with people who can’t understand why I won’t refer their complaint. What I would prefer to do is to put those into the system. Because the services would have the ability of an independent person making the final decision, they could deal with those much more speedily and firmly. They would be able to turn off vexatious or unmeritorious complaints much more easily, and then people could come to me and I would have the power to make a decision, and that would be the end of it.

Q5 Sandra Osborne: Is that the main difference between the role you have and what would be the role of an ombudsman?

Dr Atkins: Yes. At the end of the case, if somebody came to me at the end of a process and said, "I want you to review this, I don’t think I’ve been dealt with properly," I could review it and make the decision on that. What I wouldn’t be able to do is to direct what should happen on the merits of that case. As an ombudsman, that would be a recommendation back to the services. But it would act as a final appeal. I believe that it would enable the service system to be simpler and would also enable complaints to be dealt with in a firmer, more effective and certainly cost-efficient way.

Q6 Sandra Osborne: What is your view about the role that has been agreed? Is it fit for purpose?

Dr Atkins: Well, I designed it and put it forward, so I am pleased that the services and the MOD have agreed it. I think it is a valuable step and it begins to close the fairness gap, because if the 24 weeks is overrun and there are no reasonable grounds for that, I will be able to make a report to the Secretary of State. I will be able to give a much more open, honest, understandable offer to complainants, which is, "I will refer your case and, even if you don’t come to me, I will get a report once your case is going to go beyond 24 weeks or has gone beyond 24 weeks and then there is something I can do." Then it is over to the Secretary of State to read my report, accept or amend my recommendations, and come back to me on what action has been taken. So it gives Ministers visibility, it gives Service Chiefs visibility, it gives Parliament visibility-because I shall be reporting on that in the annual report-and it gives this Committee visibility.

Q7 Mr Brazier: Forgive me. I understand the importance of these process points, and you are very clear on what is happening and what you feel needs doing, but could bring it alive for us slightly by giving us some concrete examples? Could you mention a particular case-obviously without giving the names of the people involved-and show how the current system works and where it does not work?

Dr Atkins: Yes, I have a number of complaints that were made in 2008, some of which have not yet had a decision at level 1. It is a very small number-

Q8 Mr Brazier: I am sorry; we misunderstand each other. Could you give us some actual examples of the kind of complaints you are talking about and then explain how being held up affects the complaint? Do you see what I mean? When you say "a number of complaints" what are they about?

Dr Atkins: I see. We have had complaints from individuals who allege that they have been bullied. Particularly going back quite a while, they have not been dealt with very well. They tend to be fumbled for the first few months and then, in the past, they have had to try to find someone within the unit or the chain of command. In the last year, there have been some specialist investigators available. But they can take a long time to be investigated, by which time the individuals have lost confidence and they start then to make complaints about the complaints. We have had one in that situation, whereby because the individual’s complaint has taken so long, she has been moved to different units to try to help, has got mental health problems and the complaints are just escalating. So it can take three or more years before a decision is made.

We have other allegations of serious bullying where the service police have been involved. They will do their investigation in relation to the criminal allegations, which can involve the prosecutors. At the end of that time, the case comes a back to be determined as a service complaint and the individuals-both the people who made the complaint and the people about whom the complaint is made-are in this limbo land for one or two years. These are a very real instances; yes, I am talking about processes, but partly that is because I have to protect individuals. This is not a process matter; this is a fairness matter. It is about individuals and their families.

Q9 Mr Brazier: I do understand that, but I have two related points. First, who are these special investigators, if they are not the police? Secondly, I must say I feel a certain uneasiness about the idea that something can go through a criminal investigation process and be separately investigated through a second complaints process, although I know that is not quite double jeopardy. Who are the special investigators?

Dr Atkins: Let me answer both those points. A complaint can be made about bullying, harassment or discrimination, which can be about matters that would not cause the police to be brought in. They would not be criminal allegations. If it is a physical assault-a violent assault-then the police would be involved, but if it is abuse of power or the sorts of bullying that you see in the workplace, the police would not come in. Under the second circumstances, the MOD and services have now recruited a cadre of fee-earning individuals-former civil servants, former service personnel who have left the services-who have been specially selected and trained to go in and do short, proportionate, good-quality investigations, interviewing the individual who makes the complaint and the people who are witnesses.

That links to your second question. The purpose of a criminal investigation is to find out whether an individual is culpable. It is about justice, and it is about holding the perpetrator to account. A service complaint is about the wrong allegedly suffered by an individual. It is about redress and it is about resolving issues. There can be an overlap. To give an example, somebody recently made a complaint about bullying, which involved an assault. It was investigated by the service police and it went to the prosecutors. They decided that there was, on the criminal test, a better-than-evens chance-and it was in the public interest-that the individual might be found guilty on the beyond reasonable doubt test. They decided that it was not a court-martial offence, so it went back to the commanding officer, who made a decision.

Separately, the commanding officer then had to decide whether the individual who was the victim had been wronged. The culpability of the perpetrator had been dealt with, but what did that individual want? What that individual wanted was to be moved away from the person with whom he had had the problem. Do you see the difference? It is not double jeopardy, because you are looking to resolve the problem of the victim, not to double count the culpability of the offender.

Q10 Bob Stewart: Dr Atkins, can you tell me how you were involved in the development of the Military Covenant, if you were?

Dr Atkins: I was not.

Q11 Bob Stewart: So that is the answer? You were not. Okay, so the next question, which might be equally shortly answered, is, do you have an input to the annual report on the Covenant?

Dr Atkins: I have not yet, although I would hope that I would. I was invited to one meeting of the Armed Forces Covenant Steering Group, because I am very firmly of the view that my work is part of the Armed Forces Covenant, but it is not just about how service personnel and their families are dealt with outside the services. It is also by their chain of command. I would hope that the work that I do and my annual reports are taken into account and that I would be consulted in compiling, certainly the-

Q12 Bob Stewart: Maybe we should say something about that in support of your work.

Dr Atkins: That would be helpful.

Bob Stewart: I hope you will forgive me if I now skip out, because there is a debate on the Military Covenant taking place any second, and I would very much like to appear there, with your-well, I am going, but I would like to apologise for going.

Chair: That is understood.

Bob Stewart: With your approval, Mr Chairman, I am going.

Q13 Mrs Moon: I was very alarmed to see that the annual rate of increase in potential complaints to your office is much lower than previous years-that is counter-intuitive because complaints nearly always go up, especially when a new system is introduced. Why do you think the number of complaints is going down? Is it a lack of trust in your office? Is it people’s lack of faith in the complaints process? What is happening? Why is it going down?

Dr Atkins: The number of complaints to my office is not going down; it continues to rise. What appears to happen is that, every other year, we get a big increase in contacts, but a substantial number in that huge increase are either family members or members of the public contacting me. So it appears to be like dropping a stone and the ripples going out. More people who hear about you contact you. The second year you get an increase again, but a much higher percentage of those contacts are from service personnel about matters that could be a service complaint. This year, for instance-Darren will remind me of the figures-we have had just under 600 contacts. Of those, only 10% are from members of the public or about matters that could not be a Service complaint. It was a higher proportion last year. So there is a steady increase year on year.

Q14 Mrs Moon: One of the things that has been suggested is that service families are more reluctant to raise issues of concern in case raising them leads to being selected for redundancy. Is that a concern that you have picked up and been aware of?

Dr Atkins: When I met the Army, RAF and Naval Families Federations at the beginning of the year, we compared patterns of increase. They said that they had seen contacts to their offices go down and they were hearing on the ground that it was because people did not want to put their head above the parapet for fear of affecting their selection for redundancy. Interestingly, in 2011 we saw a year of two halves. We got quite a lot of complaints at the beginning of the year about appraisals, reports and postings, where people seemed to be getting in their complaint ahead of the selection for redundancy, then all that went quiet in the second half of the year. So the fear of redundancy was a factor. Because fear of the consequences of making a complaint is still an issue with service personnel that come to us and although, it is not written in any rules or guidance, I made it an internal rule for my office from the start that, unless there is a fear of immediate threat to life, we will only put complaints into the chain of command with the consent of the individuals concerned.

Q15 Mrs Moon: An interesting change. Reading about who the Complaints Commissioner’s office refers to, I see that the briefing says: "Individuals who are no longer subject to Service law, through having left the Armed Forces, also have the right to make a Service complaint if the matter which they are complaining about relates to their Service". What time scale applies there?

Dr Atkins: They are subject to the same three-month rule as regular and serving personnel. so for anybody who wants to make a service complaint there are two conditions. The first is that the alleged wrong must have occurred during their service life; and the second is that they must raise that service complaint within three months of the incident-or last incident if it was a continuing issue. It does not matter whether people are still serving or have left, but there is quite a tight window in order to raise a service complaint. They can seek to make a complaint outside that tight window, but they have to bring forward good reasons for it being accepted. Quite clearly, the longer the gap between the incident complained of and them trying to make a complaint, the higher the burden to give reasons why it should be accepted now.

Q16 Mrs Moon: In your annual report, there is a list of potential service complaints by types of prescribed behaviour, which shows the complaints you had in 2008, 2009, 2010 and 2011. In terms of the complaints, are you noting any links to the complaints, with people feeling they needed to come to you rather than the chain of command, because the complaint refers to someone within the chain of command who would have to deal with their complaint?

Dr Atkins: Yes, very often that is a reason why people come to us. It is lack of trust. It could be about their immediate boss, if I can put it in civilian terms, whom they feel that their commanding officer is very close to, so they do not have confidence that they will be believed, or partiality. It may be about the commanding officer himself or herself. It is very often the concern that, without the protection of my oversight, if I can put it that way, their complaint will not be dealt with fairly. If a complaint is about a commanding officer, or the commanding officer is implicated in any way, I refer it to the next person up in the chain of command. It is quite usual, if it is not clear who that person is or if there are concerns, that when my office sends the referral on my behalf-I having made the decision to refer-they will ask the particular service secretariat to inform me who that senior officer will be and get my express agreement before it is passed on to that individual.

Q17 Mrs Moon: Are there any particular complaints that tend to relate specifically to people who have left the Armed Forces? Are you finding that people who have left come back with their complaint and the majority of them tend to be in any particular area of those that are here-bullying, discrimination, harassment, racial harassment, sexual harassment, victimisation, bias and improper behaviour? Do any of those stand out as areas that people who have left the Armed Forces come back and raise?

Dr Atkins: I would like to check with Darren, but my impression is that they are across the piece.

Darren Beck: Yes, that is correct.

Q18 Mrs Moon: I have been looking in particular at issues in relation to rape and sexual assault. The numbers that are coming to you appear to be going down. Do you have any explanation as to why the numbers have gone down in the way they have?

Dr Atkins: When I established the office, one of the three-year goals I set was to reduce the gap between the overall level of anonymously reported incidents of bullying and harassment, assault and so on that is in the Armed Forces continuous attitude survey and the recruit training survey, and the levels of complaints. Those surveys showed that at that time around 12% of individuals, when asked anonymously, said that they had suffered some sort of ill treatment in that way. Of those 12%, however, less than 10% were raising a complaint. The more people felt confident to speak out, the more could be learned about the circumstances, how those things occurred and what to do about it.

The underlying trend in the incidence is going down but we are finding that, not just to my office but particularly in the Army, the percentage of complaints about bullying and assaults is going up. In the last year in particular-this is not in this annual report but we will be talking about it in the next one-we have had a significant number of really serious complaints coming forward. I think that, ironically, it is the quality of the complaints that matters, not necessarily the numbers. It is actually a mark of confidence that people are feeling more able to raise these issues. My concern is that the system is not dealing with them very well.

Q19 Mrs Moon: Are you able to tell us where these very serious complaints come from?

Dr Atkins: They tend to come from the Army.

Q20 Mrs Moon: Are they in relation to anything in particular?

Dr Atkins: They are in relation to physical assaults and sexual assaults. I have raised this with the Adjutant-General; I have said that we needed to have an inquiry and he is now considering how best to do that. But there are some real lessons to be learned in relation to the complaints that are coming forward at present, because they should be dealt with better. I would like them to be dealt with better. I should say that in relation to rape and sexual assaults, I deal with service complaints and it goes back to the question that Mr Brazier asked me, so if a complaint comes forward relating to a potential criminal matter, the service complaint is put on hold and it goes into the justice system. That is right and proper.

A number of complainants-particularly female complainants-come to me with issues that are not actually about rape or sexual assaults, but they raise rape and sexual assaults as a matter in the past and a reason for not trusting the chain of command. This goes back to the question you asked me at the first part of this section.

Q21 Mrs Moon: Thank you. That was also what I picked up and it is nice to have you confirm it. In relation to bullying and discrimination, two areas that have been brought to my attention as concerns relate in particular to service personnel who come from overseas to serve. They feel they are often subject to bullying, discrimination and harassment because of a desire to have negative reports on their military service records where they respond, which would lead to them losing any future application for citizenship. Is that something you picked up at all? Is that in any way, shape or form a concern you would have?

Dr Atkins: I do not think it is quite as simplistic as the way you have suggested. Certainly I am concerned; you may recall from my background that I started life as an anti-discrimination lawyer and I am concerned about the issues of race and bullying. It is very difficult to put a finger on, but in the proposed inquiry that is one of the things I would be looking at. Some of the cases I get-along with those from foreign and Commonwealth soldiers who say they have been bullied-are actually from British soldiers who are not black or from an ethnic minority but are assumed to be part of a minority ethnic group, particularly a religious one. They allege they have been subject to racist taunts as well. So I think race is an issue and there is a complex dynamic-which the services are aware of and I will try to do something about-which can be the sort of dynamic that those who teach in schools are aware of, of somebody who is very bright who feels that if they put their head above the parapet they are going to suffer for it. So they then play dumb and get poor reports and find they are kicked out of the services because of it. So I think there is a complex issue there and there are a number of dynamics; it is something that needs to be looked at.

Mrs Moon: Thank you.

Q22 Penny Mordaunt: Does your analysis reveal any systemic problems in the three services?

Dr Atkins: I think there are systemic weaknesses. Some of them are shared and some of them differ, service to service. One of the principles that I have put forward about good complaint handling, behind the proposal for an ombudsman, is that the complaints should be used as opportunities to identify systemic weaknesses and do something about them. I have been working with the services about how lessons can be recorded and lessons learnt. I am doing work with the Navy currently, which has led on this, to try and ensure that it delivers. Some of the issues are in relation to pay and allowances; complaints about pay and about putting people onto the wrong pay point come up time and again. I know that that is something that SPVA and Ministers are concerned about. There are those sorts of system errors, and there can be systemic weaknesses in the understanding and application of policy and procedure; there is a variety of systemic weaknesses. There is also the one I talked about earlier this afternoon: the interrelationship between the criminal justice system, the military system and the service complaints system.

Q23 Penny Mordaunt: What would you say the priorities should be for each service in terms of making improvements in the handling of those complaints-not so much about the issues that are forming the complaints, but the approach to them? If you could give a priority for each service, what would it be?

Dr Atkins: The Army has huge backlogs at the unit level and throughout the system, particularly at Army Board level. It has put in a lot more resources to try to deal with those and ensure that it speeds up the handling of cases. That is overwhelmingly the number one process issue.

Q24 Penny Mordaunt: Can you give an idea of the volume that we are talking about in terms of those cases?

Dr Atkins: While I talk, Darren will have a look at the numbers and then give them to you. Last year, for instance, the Army only decided a third of the cases that were made during the year at unit level by COs. I was told that at present the Army has over 70 cases that are more or less ready to be decided at Army Board level and another 70 cases waiting in the wings. That means that anybody who has a case today which needs to be decided at Army Board level has at least a year to wait before it can be decided. That just gives you the scale.

Darren has just provided the information, which says that in 2011 the Army worked on 630 cases at the unit level and 399 were still waiting to be decided at the end of the year. There were 50 cases at divisional level and, at that point, 96 waiting at Army Board level. It currently has 140.

Q25 Penny Mordaunt: And in terms of priorities for the other services?

Dr Atkins: The RAF recently changed the way it handles its complaints, after I went to the RAF Board and talked about it. It had huge backlogs at unit level, because it required the lawyers to advise on the complaints at every stage. What the Board found in relation to Operation Ellamy last year and the Libya campaign was that there were capped posts for lawyers and their resources were used elsewhere, which meant that service complaints were waiting anything from eight to 24 weeks just to get started; and again, a similar length of time at the end. I have to say that in relation to the complaints, the Navy has adopted a very different approach. I have worked very closely with the Navy. You will see the startling figures in relation to last year, where it resolved huge numbers informally and upheld nearly three quarters of complaints, either in whole or in part, that came to the Navy at level 2, the headquarters level. That was because the majority of complaints, whether through me or to the Navy directly, are about some procedural irregularity or maladministration-something has gone wrong with pay, allowances, promotion or posting. Rather than putting them into a queue until somebody could look at them, they were triaging them If the caseworker and lawyer thought a mistake had been made, they were picking up the phone and talking to the individual, saying, "I think something went wrong here. What do you think we should do about it?" and being able to resolve that. They had a backlog at the Navy Board level. They put additional resources in at unit level, ship level and at the Navy Board level and they are now zipping through their cases.

In terms of handling, the Navy is doing very well. I am not giving up on them, because this has got to be sustainable. Personnel have changed fairly recently and I want to make sure they are keeping going. They are in a good position now really to lead that continuous improvement approach. Their challenge is to ensure that they are learning from their complaints and stopping the causes of complaint arising in future. That is that efficiency circle that I talked about that I am really looking for.

Q26 Penny Mordaunt: I have a couple more quick questions. You mentioned that people can suffer stress and mental health difficulties when they are going through a lengthy process. It is a concern of the Committee-a theme we have picked up and I have seen in my casework-that there is perhaps a lack of integration between health care within the Armed Forces and someone’s civilian GP. Is that an issue that you have picked up? Are there other major themes like that that are causing difficulties for people to be dealt with in the best way?

Dr Atkins: There are difficulties when individuals, for whatever reason, go home and then decide whether to use the service medical services or their GP medical services. We see it a lot where individuals go AWOL and then go to their civilian doctor and the civilian doctor’s report is not respected by the chain of command. There are problems about that.

There are also problems with families of individuals who are suffering bullying and have real problems in the services and then go home. We do need to do something about that whole dynamic. That is why I want this inquiry to look into the handling. There is a range of issues I have talked about this afternoon that I really feel need to be looked at. I would like the services to sit down with an independent expert-and I would like to be part of that-to work through a number of cases and say, "What happened here? What should have happened here?"

Mrs Moon talked about sexual assault and rape, so it could be about access to specialist victim support services, medical services and psychiatric services. It is a matter of concern that there could be very good reasons why service personnel, or former service personnel, do not want to go into a service environment, but nevertheless there needs to be this continuity of care.

Q27 Penny Mordaunt: Following on from that, clearly the forces families’ organisations, I imagine, would be quite heavily involved with supporting families. My experience has been that there is a very limited amount of support for families. Perhaps in the example you have given they have had someone come home and they are in real emotional difficulties. We are going to come on to talk about your resources, but are there things that those third parties-I’m thinking of charities and federations-could be doing more of that you would perhaps like to see? Or would that be something that your inquiry would look to?

Dr Atkins: It is certainly something the inquiry would do. I am actually meeting with the service charities tomorrow, predominantly about the new arrangements but to make sure that we are getting these issues on the agenda. It is quite difficult, because some of the families would not want to see themselves as part of the service community. I think that goes back to the point that you made, Ms Mordaunt, about how you get the civilian world and charities link in with the service world and services. If, for whatever reason, the families distrust the service world, that can also link in to Service charities. I have seen it a number of times when the family of the service member who comes back has so lost confidence in the services that they do not want to have anything to do with me or with any of the service charities. I really think we need to find ways of ensuring that the families are supported, because after all it is their son or daughter. They often feel very guilty because they have encouraged them to go into the services and then they have come back damaged, so the whole family dynamic is damaged.

Q28 Mr Brazier: I want to preface this with a comment, which links to my earlier question about the distinction between criminal investigations and your investigations. I have been dealing with a very, very upsetting case involving somebody I know very well in my constituency who has been subject to appalling psychological bullying but of a kind where there was no criminal content, so I well understand where you are coming from, but I still feel a little uneasy about some of the things you are saying to us. What sort of matters could come under the category of rape and sexual harassment that are not criminal? I do not mean that naively at all, but could you just expand on what you mean by that?

Dr Atkins: I apologise if I was not clear. If there is any suggestion of behaviour that could constitute a crime, so rape or sexual assault, the police-whether it is civilian police or military police-will be brought in. You talked about psychological bullying, and there can be bullying where it would not be appropriate to bring the police in. It would be a civil-not a civilian-matter.

Q29 Mr Brazier: In the bar chart in your report, what is the category of rape and sexual assault referring to?

Dr Atkins: I do not have criminal categories in my report; I talk about where people come to me to say that they have been bullied. I will give you an example. I had a soldier who came to me who talked about a pattern of bullying by his peers and by his junior NCOs, both at home and on operations, which ended up with an assault by individuals unknown, which had followed threats. You very often get cases-it could be criminal damage-where somebody has been bullied, picked on, undermined and threatened, and then their room is trashed and their belongings are taken.

Part of that may be criminal behaviour, but there is a broader context here of bullying behaviour. If you focus on the criminal behaviour, as is right and proper in the criminal justice system, you are holding the perpetrators to account through the criminal justice system, but the individual who is the victim of bullying may actually want something very practical. They may not simply want the individual perpetrators to be held to account; they may want to change their unit or get their property back. They want to feel safe. They may want an apology. None of that is susceptible to the criminal justice system, but just because one part of the behaviour has been dealt with by the criminal justice system, I do not believe that that should stop the focus on the individual to say, "I am sorry, you were wronged."

I talked to a commanding officer the other day who had not understood that point. He thought that he had dealt with the criminal behaviour and there was nothing more he could do, and I said, "Actually, you have to now address whether the individual victim was wronged and what they want." He said, "I have absolutely no doubt that they were wronged. I was not able to find the perpetrators guilty of the whole list of criminal offences that were put to me to decide, but I have no doubt at all that the individual was wronged." We can now seek to try to put him in a place where he would have been, had he not been suffering this bullying and harassment.

Q30 Mr Brazier: Okay. I understand that. In the context of operations and so on, I am thinking of some of the individual constituency cases that I have dealt with over the years. I wonder how much can be done outside the chain of command, but I will not trouble the Committee with some hard cases. Can I ask you what, in your view, are the reasons for the rise in potential non-prescribed complaints about medical treatment and what action has been taken to address that?

Dr Atkins: Last year, we saw a rise in complaints about medical treatment and this year the numbers are down again.

Q31 Mr Brazier: Could you give us some examples, rather than the statistics?

Dr Atkins: On medical treatment, there were examples-I do not want to go into too much detail-of families who were given the wrong advice or were treated discourteously at a time of tremendous domestic family stress. It was how they were treated by the doctors. There can be examples of the individual having a weight fracture or some impact from physical training. There can be many stress injuries that are not picked up or given the right physiotherapy and those issues are continuing.

There is a phenomenal range of complaints that you would expect about doctors and medical services, which are provided in this country by Defence Medical Services as primary care and overseas as secondary care. There are a whole range of issues. I worked, and work, closely with the Surgeon General and his heads of the medical services in each of the three services and we discovered in 2011 that there was no clarity on how to make a medical complaint in many of the medical practices or in the hospitals overseas, and there was not an extant medical treatment complaints system in place. Actually, the complaints that were coming to me were largely because people could not make the complaints. They have worked on that and we will get the full figures at the end of this year, but the number of complaints to me about medical treatment have gone down.

Mr Brazier: Thank you.

Q32 Mrs Moon: I wonder whether I could go back to some of your answers to Ms Mordaunt’s questions. You talked about people on operations. Are you happy that service personnel on operations have adequate opportunities to raise complaints?

Dr Atkins: I know that they do make complaints and I know that they come to me on operations. We had 11 individuals contact us last year. We had six from Afghanistan. We have had six this year and we get complaints from Kenya and Brunei and other places where people are on operations. One of the ways in which I publicise my services is a public broadcast advert with BFBS and it is interesting, particularly on operations, the number of soldiers, sailors, airmen and airwomen who say that they have seen the advert so they know they can e-mail me.

I know that individuals also make complaints on operations without coming through me, because all you need to do is write your complaint and sign and date it and commanding officers can then deal with it. I have talked with commanding officers-I help train commanding officers designate before they take up command in all three services and have done for three years-who have dealt with complaints quite successfully on operations.

What confidence can I have that anybody who is suffering on operations does feel comfortable about making a complaint? Well, I cannot say hand on heart that they can do that, because there could be all sorts of reasons why they may not feel confident about doing so, but I am notified of all non-explainable, non-combat deaths, as you know, and I am getting complaints from operations. So, I know it happens. It is an area to keep looking at.

Q33 Mrs Moon: Is there a difference in the complaints, in any way, that you get while people are on operations? Do they have a different focus? Are they usually around any particular area? Is there anything that makes them unique?

Dr Atkins: They tend to fall into three categories. The first is bullying. That can happen particularly if they are augmentees, either regular or reservist-they have not gone out as part of a unit, they are put into a unit and people are picking on them and undermining them. That is one category.

The second category is about pay and allowances. In this annual report I gave as an example a case study of somebody who was in Afghanistan on operations and discovered by checking his bank account that he had not been paid. He queried it and was told that he had left the services; he said, "No, I don’t think so; I think I am in uniform and in Camp Bastion." So, the second category is if something has gone wrong with pay and allowances.

The third category is about when something has gone wrong at home, and being away from home and worrying about whether it can be resolved. When they come to me in that category, we can give them assurance that they have logged it with us, they do not have to worry about it and, if it is something that needs to be sorted out urgently, like them not being paid, we will try to sort it out. Otherwise they do have time to pick it up when they come back, because that is an exception to the three-month rule. It tends to be those three categories.

Q34 Mrs Moon: You also mentioned that you would refer something on to either the military police or the civilian police. If the complaint relates to the military police, where do you go? Do you refer it always to the civilian police? If a complaint was about someone in the military police and there was an element that you felt needed to be followed up by a police investigation, would you put that to the civilian police? Where would you go with it?

Dr Atkins: If they are making a service complaint, it goes to their chain of command, so it would go to their own commanding officer. If they are not in the service police themselves, it will go to their chain of command outside the service police. If it is about the behaviour of a particular service police force, it will very often be investigated by another service police force, if it relates particularly to criminal wrongdoing. So there is that barrier. If the complaint is by a member of the service police, then clearly it goes to their chain of command. That is where having me oversee their complaint is very important.

I have raised the issue of service complaints about the service police in my annual reports-I worked very closely with the former Provost Marshal (Army) and the Provost Marshals, and I am seeing the new Provost Marshal (Army) in a couple of weeks-saying that they needed to have proper professional standards departments. There has been a programme of work with HMIC and the civilian police to do that. But I am concerned that, uniquely of the police forces in this country, they do not have effective independent oversight. Service personnel who make complaints about the service police are in the same position as citizens and members of the public who make complaints about the civilian police. I know that the MOD and the service police are seized of this. I did make a recommendation that, when a complaint about the service police gets to the defence council level, there should be two independent members sitting on the service complaints panel. That has not yet been adopted.

Q35 Mrs Moon: That is very helpful. Can I clarify a third area that you touched on, which is to do with deaths? Where you have been party to an investigation of a complaint and someone dies-someone who has left military service or who remains in military service-in theatre, in an accident or by taking their own life, what do you do with that complaint and do you pass details of it on perhaps to a coroner? Where does it go? How do you ensure that justice does not end because the person has died?

Dr Atkins: If someone has made a complaint to me and I have referred it and it has become a service complaint, and then they die, that is the end of it. That is because a service complaint is a workplace grievance and can be taken only by the individual who is the service member. That can be very distressing for the families. Last year I had two members of the services who had raised complaints-they were long, ongoing complaints-and they died for reasons totally unconnected with their service and with their complaint. In one case, the family was extremely distressed-in both cases, actually, the families were extremely distressed-that the matters that their loved one had started to raise would not be investigated. In one case, the individual about whom the complaint was made was also very distressed, because they felt that they had lost the opportunity to clear their name, as it were. So that is the first thing.

If we have been approached by somebody about a complaint, but they do not consent for us to put it to the chain of command, there is nothing we can do. When I am notified of non-combat, non-explained deaths, what we will do is check against our contact list to see if there is anything that we know-whether we have been contacted by that individual or if there is anything in the circumstances there, that would then be information we held that would need to be given to the coroner. So far, we have not been in that circumstance.

What I would say is that that is a really good demonstration of the difference between a Service Complaints Commissioner who is linked to service complaints and an ombudsman. I do think there is a gap there. I have talked about it in an earlier report and with the Committee the last time. I am approached from time to time by families who say that something had gone wrong in the service life of the person who has died, and there is nothing I can do. What I will do is offer to write on their behalf, but it is totally outside my statutory remit, because it has to be a service complaint to be within my remit.

Q36 Mrs Moon: Again, if I can pick up on your comment about reservists. We are expecting an increase in the number of reservists. As that is going ahead, will we need to have a new process? Has any work been undertaken to look at the impact of changes in the numbers of reservists in relation to their access to service complaints and how they would be dealt with?

Dr Atkins: I do not believe there would need to be a new process. About 9% of contacts with my office are from reservists. Some of those are individual reservists. Some of them are reservists on full time contracts. I have visited TA units and naval reserve units and talked about this. My office has also picked up with the lead in the MOD on the reservist policy about the changes that need to be made to communicate information about service complaints; how to make them, information about the Service Complaints Commissioner and information about terms and conditions which can give rise to complaints. The communication of those is not good. There also needs to be better access to JPA, which is the personnel administration system. That is all part of the future reservist 2020 plans. Some thought is being given to what is required.

Q37 Chair: Can I talk about reviews of the entire process of the Service Complaints Commission? In your 2011 annual report, you said: "In my Annual Report for 2010 I reviewed the performance of the Service Complaint system, against the three year goals". You also said: "A review started in summer 2011 but is not now due to be completed until May 2012… I have expressed concerns about its design and approach as well as timing". That implies that the first review was undertaken by you, but the second was undertaken by someone else. Is that right?

Dr Atkins: Not quite. What I did at the outset was put out a vision in six goals of what I hoped the service complaints system would look like by 2010. I assessed the progress of that 2010 report and said I thought the service complaints system was over-engineered and the powers and resources of the Service Complaints Commissioner were insufficient. I looked at different models of strengthening the role and simplifying the system, but because I wanted the MOD and services to take ownership of the need for reform and the changes to be made, I recommended that they should do a review, taking into account my report and recommendations in 2010. I made that recommendation in December 2010-nearly two years ago-at the service personnel board and I presented them with two models. One was the service complaints system-not if they went through their time targets, but if they went through the tougher time targets as originally envisaged in 2007. The minimum amount of time to get through that was 50 weeks. The minimum period for the civil service workplace grievance system or the customer services complaints system that applied, for instance in Germany, was between 20 and 24 weeks. I said to them: "Look, basically, your system is designed to be too long and it’s just too complex". So I recommended a review. The MOD and services agreed that they would start a review-

Q38 Chair: And that itself turned out to be too long and too complex.

Dr Atkins: And that did not conclude until this summer.

Q39 Chair: So exactly the same complaint that you could make about the system, you could make about the review. Would that be fair?

Dr Atkins: I think it was too long and-

Q40 Chair: That is a yes.

Dr Atkins: It wasn’t fundamental and I didn’t think the methodology was going to achieve what they wanted.

Q41 Chair: Well, the MOD itself says that the system suffers from demand for resources, delay and appeals. Would you agree? The MOD assessment is that the three main factors affecting the performance of the system are demand for resources, delay and appeals. Would you agree with that?

Dr Atkins: Yes.

Q42 Chair: What do you think they are doing to put it right? Do you think it is enough or too slow?

Dr Atkins: Both.

Q43 Chair: It is too slow?

Dr Atkins: I think the pattern over the last few years is slow. I have expressed doubts as to the changes that they propose making. Whilst beneficial in themselves, they are tweaking a system which needs to be fundamentally redesigned and simplified. I gave my solution in my annual reports-

Q44 Chair: Which was the ombudsman.

Dr Atkins: But it is a package-it is an ombudsman for external protections, which means that you can strip out and simplify some of the procedures. I was talking to Ms Mordaunt about what the Navy has done. Part of that is cultural, part of that is not focusing on process, but it is understanding what a workplace grievance is for. It is, when something has gone wrong, to get your concern to the individual who can do something about it quickly enough so that they can establish the facts, deal with everyone fairly and come up with a practical solution. If it is that you are not getting your pay paid correctly, it is about getting to the person in the system who can sort out your pay and who is also looking at all the pay complaints and can then say, "Actually, we have a problem here."

In this annual report, I talked about the case study of the person who discovered on operations that he had been discharged. That happened again this year. Why does it happen? Someone put in the wrong date, or the system automatically made the wrong date, so that when the person applied for discharge-they have to serve 12 months’ notice-they were discharged from that day or the day after and the pay automatically stops. It is a system weakness, or it is a human fault with a system weakness. It should not happen that individuals who are serving do not get paid. It should not happen the first time, but it jolly well should not happen more than once.

Apologies, but you can see that I feel things need to be sorted out and to be sorted out quickly.

Chair: Yes, well, that is what you are there to achieve, and we very much hope that you will. So there are improvements to be made and one of those is instigating studies yourself.

Q45 Mrs Moon: When I worked in the inspectorate, I tried to tell people, "Complaints are your best friend." You do not need to improve practice if you get a compliment, but a complaint will show you how you can make more people happy; so always listen to complaints, because there might be a gem, a peach of a piece of information there, that you are turning your back on.

I am intrigued by your suggestion-and quite shocked, in fact-that you are not able to instigate studies other than those you are directed to undertake by the Secretary of State; nor indeed are you able to undertake studies that the Defence Committee might like you to undertake. If you were given free rein, after your period in office, what would you want to undertake a study into? Is there anything that you feel we need to shine a light on? If it was in your power, what would you do?

Dr Atkins: I would look at the cases of bullying, which include assault, and the issues to do with mental health, access to services, race-the issues I talked about-and the handling of those cases. That is because-I was speaking with the junior Minister about this a few weeks ago-the cases that are coming up now are not from a particular part of the Army, and they are very similar to the cases that were being brought up years ago, historical cases, involving practices that people thought were no longer taking place. They are initiation ceremonies. In the past few weeks I have done visits to units and been told about issues that have not come my way as complaints, but they have been dealing with those issues as well. There is a problem out there. I am pleased that individuals are beginning to raise them, but actually we need to do some work.

That is what I would do, and that is I think what ombudsmen do. They have this broader view, whether they be the health service ombudsman, parliamentary ombudsman or the Children’s Commissioner, who today has powers to do research and inquiries. They can pull together in an informed and responsible way evidence across the piece and put it forward in a way that is very valuable to the organisation that they oversee.

Q46 Penny Mordaunt: Do you have enough resources? If not, what additional resources do you require?

Dr Atkins: No, I do not have sufficient resources. The Chairman talked about the review; at the end of the review, the MOD’s conclusion was that the solution was actually to keep the status quo, but to formalise what I had already been doing in practice, which was intervene, ask questions and spot where things were going wrong. At that point, we predicted that we would have 1,000 open cases. As of today, it is just slightly less than that, but the MOD accepted at the time that in order to deal effectively with the model that they were putting forward, I would need 15 caseworkers. In July this year, I got my fourth. That was one reason why I refused to accept the model that they put forward. They had made it quite clear that resources of that scale were notavailable .

The alternative interim proposal that I put forward will need more resources. I have asked immediately for an additional senior caseworker to make the new model work effectively. We will be introducing that model in the transition over the next year. Part of the transition is to review what the resources are, and to see what we need.

I am not here to make a huge bid for resources. In a time of financial constraint, I am looking for an effective, efficient and fair system. Apologies for going back, but I cannot stress this sufficiently: the rejection of my proposal for an ombudsman and a simplified system is a lost opportunity.

Q47 Penny Mordaunt: If you could make some decisions, you could put resources where they were needed.

Dr Atkins: If I could make decisions, I could provide the external protections on fairness. The services could deal with cases in a much firmer way and be more confident in making the decisions. If people did not like their decisions, they would have somebody external to go to. It is exactly the same as when I was the first chief executive of the Independent Police Complaints Commission. On average, it took two years for the police to investigate homicides following police involvement. We reduced that in the first year to six months because somebody external was either investigating or overseeing it.

I do not have insufficient resources. I have the resources that I bid for in 2008. As the Chairman said, they have taken a long time to come. I do not have sufficient resources for the model, but I have asked for them and I understand that that is being looked at now. I have asked for very minimal additional resources, but I have not got resources to do the work, even participating in inquiries of the type that we talked about and I believe are necessary.

Q48 Chair: So when the MOD says that they have met all of your requests for funded posts and for additional resource, that is not quite right.

Dr Atkins: With one exception, it is technically correct. There are subtle ways that I have talked about, but I have been dissuaded from making bids for resources. I have to say that I have had absolutely no compunction in going to the service boards and telling the service boards that they need to put extra resources in. The Army has done so and so has the Navy as a result of that. It is very difficult to plead your own case.

I think you will remember, Chairman, that I said at the outset that I wanted to be able to recruit my staff from across the civil service, rather than from the MOD as a matter of principle. I made that request very formally, but the Permanent Secretary refused that request and said it would be looked at on a case-by-case basis. The Permanent Secretary pointed out that, every time I had made a case, it had been acceded to, but that takes a lot of time, because every time I have to make a business case. Contrary to when I was set up and I had staff from other Government Departments on secondment, the staff who came to work in my office now are all MOD civil servants, even if they came from another Government Department.

Q49 Chair: You are stopping next year-sorry, not next year. You are stopping in March 2014. I sense a certain frustration with the pace of change that you would like to see. Is that fair?

Dr Atkins: The end of my second term is March 2014, so there is still a lot of life and energy in the Service Complaints Commissioner yet, but I have made recommendations and they have taken a very long time to be put into place.

Q50 Chair: Your successor should have what sort of qualities?

Dr Atkins: I think there are three aspects. First, I believe very firmly that they should not come from a military background. The Act says that the person should not currently be in the military or in the civil service, but I think that they should be from outside the military. That is for two main reasons. First, the military is quite a closed world, and the real value to the services and the MOD is in having somebody who comes with an outside perspective. The Service Chiefs have actually said that that is what they value, because I can look at their perspective on things, and I can say, "Yes, you’ve got that absolutely right," or I can say, "Actually, there is a different way of looking at that." They find that very valuable. The second reason is the confidence of service personnel and the number of people who come to me, or whom I meet on training sessions or when I am out and about, and say that if I was from a military background, they and their families would not have used my services. I feel very, very strongly that that is what is required, predominantly.

Secondly, in terms of personal qualities, somebody who understands and has a good grasp of both justice and fairness and cultural and organisational change is very important, because you need to be able to understand, respect and value the services you are working with and work with them to improve. In my experience that has been very, very important.

The other aspect, and I have already started discussions with officials on this, is that I think the post needs to be full-time.

Q51 Chair: Do you not work full-time?

Dr Atkins: No, I work three days a week.

Chair: Okay. Right.

Dr Atkins: When I was appointed people didn’t understand-

Q52 Mrs Moon: Do your four members of staff work full time?

Dr Atkins: I have eight members of staff, four caseworkers, and they all work full-time. My staff have worked full-time from the outset, although when I was appointed I was asked to work two and a half days a week and have two staff who worked two and a half days a week. I said that that was not sufficient.

Q53 Chair: So will you have any say or input into who your successor is?

Dr Atkins: I hope I will be consulted, but I think it would be totally inappropriate for me to be part of the process.

Chair: Right, I see. Well, we very much hope that we will see you again before March 2014, because we always enjoy and appreciate what you tell us and what you do, so thank you very much indeed. Are there any other questions? No. Dr Atkins, thank you very much indeed, and Mr Beck, thank you as well for coming along and for being able to sit so silently for so long.

Dr Atkins: I have to say that he has been invaluable in making sure that we give you the correct information. Obviously, if on reflection there is anything you did not ask and would like us to provide, we will be very happy to do that.

Chair: I think that there may well be. We will want to think about this, and we may well want to ask you some written questions, but according to past form that will not cause you any problem.

Dr Atkins: Thank you very much.