House of Commons - The work of the Service Complaints Commissioner for the Armed Forces

The work of the Service Complaints Commissioner for the Armed Forces - Defence Committee Contents

2 The current Service complaints system

2. The Service complaints system introduced by the Armed Forces Act 2006 came into effect on 1 January 2008. It replaced the previous separate single Service legislation and processes. The policy and guidance for the new system is set out in Joint Service Publication (JSP) 831, the latest version of which came out in June 2010.[3] A new edition is expected in Spring 2013. The aim of the Service complaints system is to provide for members of the Armed Forces "a fair, effective, and efficient method for obtaining redress for grievances".[4] The Ministry of Defence (MoD) told us that "increased independence, timely handling of complaints and instilling confidence in Service personnel about the efficiency of the complaints process were key policy considerations behind the construct of the new complaints process".[5] The new process emerged against a background of calls for greater independence in the system, particularly in respect of complaints of bullying, harassment and other improper behaviour following the deaths of four soldiers at Princess Royal Barracks, Deepcut between 1995 and 2002.

3. Any person subject to Service law who thinks they have been wronged in any matter relating to their Service, including bullying, harassment, discrimination, and biased, improper or dishonest behaviour, has a statutory right to make a Service complaint.[6] Service includes both regular and reserve Service. Service complaints must normally be made within three months, beginning with the day the matter complained of occurred. JSP 831 provides guidance on the procedures to follow for the submission and handling of complaints raised by both existing and former Service personnel, including the time limits that apply.[7] 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, occurred whilst they were still subject to Service law and is submitted within the appropriate time limits.[8] Service complaints can be raised in two ways:

directly to the individual's chain of command; and
by notifying the Service Complaints Commissioner of a potential complaint.

Role of the Service Complaints Commissioner for the Armed Forces

4. Any serving or former member of the Armed Forces, or someone acting on their behalf, can contact the Service Complaints Commissioner independently. The Service Complaints Commissioner's role in the process has two functions:

to provide an alternative point of contact for Service personnel, or someone acting on their behalf, such as a family member, a friend or MP, who for whatever reason does not have the confidence, or is not able, to raise allegations of bullying, harassment, discrimination or other improper behaviour directly with the chain of command; and
to provide independent assurance on the fairness, effectiveness and efficiency of the Service complaints system to Ministers, the Services and Parliament by way of an annual report.[9]

5. Under the Armed Forces Act 2006, the Commissioner may not herself investigate any complaint made to her, but can only refer the matter to the individual's chain of command who will contact the individual to see if they wish to make a formal Service complaint. If the Commissioner considers that the information provided to her includes an allegation of any type of bullying, harassment, discrimination or other improper, dishonest or biased behaviour (prescribed complaints (see paragraph 8 below)), any referral of those allegations places a legal obligation on the chain of command to keep her informed of the progress and any decision on the case. The Commissioner's referral of non-prescribed complaints (see paragraph 8 below), for example on pay and allowances, to the chain of command does not place on that command an obligation to keep her informed about the case. However in practice she does ask to be kept informed if the Service person makes a formal complaint and this is accepted (with reasons given for any rejection).[10]

Complaint levels

6. All Complaints are resolved at one of three levels: Prescribed Officer, usually the Commanding Officer (CO) (Level 1), Superior Officer (SO) (Level 2), and the Defence Council (Service Board or Service Complaint Panel (SCPs)) operating with the delegated powers of the Defence Council) (Level 3). JSP 831 describes the three levels as set out in the box below.[11] In addition to single Service casework staff, the complaints process is supported by a secretariat.[12] The secretariat has two main components; a central secretariat (part of the central staff) and the secretariats of the three single Services. Further information on the roles of those involved at each level of, and the processes followed in, the complaint system can be found in JSP 831.

Table 1: Service Complaint levels

The Service complaints process has 3 levels:

Level 1—Prescribed Officer, usually the Commanding Officer (CO);
Level 2—Superior Officer (SO); and
Level 3—Defence Council level.

The CO is expected to consider carefully whether he or she can effectively deal with the complaint in reasonable time. If the CO is not able to do so or lacks the authority to grant the desired or any other appropriate redress, they may refer the complaint to the SO after conducting an appropriate investigation. If the SO also does not have the authority to grant the required redress, the CO may refer the complaint directly to the Defence Council, having consulted with the SO. On receiving a complaint, the SO should make the same considerations as the CO. At each of the first two levels, if the complainant is not satisfied with the proposed resolution of the complaint or the redress to be granted they may apply to have the complaint referred to the next higher level for consideration.

Source: Ministry of Defence Joint Service Publication 831, Redress of Individual Grievances: Service Complaints, Issue 2.2, June 2010

7. Service Complaint Panels (SCPs) were introduced by the Armed Forces Act 2006 and normally consist of two serving officers of at least one-star rank, usually of the same Service as the complainant.[13] Single Service secretariats are responsible for nominating SCP members, except that independent members are nominated by the central secretariat. The expectation is that a complaint at Level 3 will be dealt with by a SCP, and this should be the case if the complaint involves bullying, harassment or improper behaviour.[14] SCPs dealing with these types of cases will include an independent member who is neither a member of the regular or reserve forces nor a person employed in the civil service. The Armed Forces Act 2011 provided for SCPs to be made up entirely of independent members for some cases. Some cases may also be retained by the Board, particularly if they involve matters that have wider Service implications.

Prescribed and non-prescribed complaints

8. The Secretary of State for Defence may prescribe in regulations made under the Armed Forces Act 2006 categories of behaviour to which specific procedures and legal obligations apply if a complaint is made. These are known as prescribed complaints. Prescribed complaints currently include those of bullying, harassment, discrimination, dishonesty, bias, victimisation and other improper behaviour.[15] Any other matter which a Service person may consider has caused them "wrong" may also be the subject of a Service complaint. Examples include terms and conditions of Service, appraisal reports, pay and allowances or dental and medical treatment. These types of cases are referred to as non-prescribed complaints.[16]

Types and numbers of complaints

9. The Commissioner has published in each of her four Annual Reports data on the numbers and types of allegations her office has been contacted about and which may become formal Service complaints if she refers them to the chain of command. She also provides an overview of the numbers and types of Service complaints submitted directly to the chain of command. The Reports also include data on the number of complaints by Service at each level, and outcomes. The MoD told us the number of new overall complaints had risen steadily each year from about 250 in 2008 to over 800 in 2011.[17]The MoD expected this trend to continue:

on the same path for the foreseeable future, not least if confidence in the process (as shown in responses in the Armed Forces Continuous Attitude Survey and Recruit Trainee Survey) continues to build as the SCC suggests in her 2011 Annual Report (page 24, paragraph 1). The MoD's strategy is to continue to encourage greater awareness and use of the complaints system.[18]

10. The Commissioner agreed that the increasing number of complaints may demonstrate an increasing confidence in the complaints system. In her 2011 Annual Report she said:

Over 1,300 people have contacted the SCC in the first four years. Overall referrals by SCC made up just over one third of all Service complaints in 2011. This was lower than last year's figure of nearly half, suggesting that confidence in making complaints directly to the chain of command may be increasing.[19]

She also noted that "the number of claims made to Employment Tribunals in 2011 [by Service Personnel had] also fallen, which may also indicate increasing confidence in the Service complaints system".[20]

11. However the Commissioner's 2011 Annual Report also stated that:

The number of contacts about matters that could become Service complaints, referred to in this report as potential Service complaints, was 436. This compares with 357 in 2010, also a 22% increase. This is a much lower rate of annual increase than in the first three years on the SCC's office.

The reasons for this are not clear. However other organisations, such as the Army and RAF Families Federations have also reported much lower levels of contact from Service personnel and their families and believe that this may be linked to the redundancy programmes announced in 2011. They suggest that Service families have been more reluctant to raise issues of concern, lest this should affect decisions on selection for redundancy. A number of solicitors have also reported individuals going to them because they felt the SCC had no powers. We have had an increasing number of people not pursue matters with us, after initial contact, for the same reason.[21]

12. The Commissioner confirmed to us in her oral evidence that she believed that concerns about redundancies were a factor in deterring Service personnel from contacting her and other organisations. She also confirmed this had led to a lot of complaints about appraisals, reports and postings at the start of 2011 as Service personnel submitted their complaints ahead of the redundancy selection process followed by a quieter second part of the year. The Commissioner added:

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.[22]

13. The British Armed Forces Federation (BAFF) also thought that a fear of the consequences of making a complaint, particularly during the current redundancy programmes, deterred individuals from making a complaint. The BAFF told us:

The current atmosphere of redundancy and uncertainty is bound to increase the perception that submitting a service complaint may not be in the best interests of the complainer. Some will be particularly reluctant to seek redress if it is seen to involve their present commanding officer, as opposed to some impersonal administrative failing.[23]

14. The MoD accepted that the redundancy programme had created the potential for a sudden growth in the number of Service complaints and a potential backlog in dealing with them. However it pointed to a bespoke appeals procedures which was put in place that the MoD claimed was extremely successful in resolving the overwhelming majority of queries without recourse to the Service complaints process.[24]

15. We accept that the steady increase in the level of Service complaints made directly to the chain of command or referred by the Commissioner may indicate an increasing level of confidence in the system. However, we are concerned to note the Commissioner's comments regarding a much lower rate of annual increase in contacts about matters that could become Service complaints compared to the first three years that her post had existed. Our concern was heightened by other organisations, such as the Service Families Federations, reporting lower levels of contact from Service personnel, solicitors reporting an increase in the number of individuals approaching them as they felt the Commissioner had no powers, and the increase in the number of people not pursuing matters with the Commissioner after initial contact for the same reason.

16. We are further concerned that the Commissioner and others are reporting that fears of redundancy among Service personnel appear to be deterring them from making Service complaints. It is unacceptable that Service personnel who believe they have a genuine grievance in relation to redundancy or any other matter are reluctant to seek redress and resolution of the matter through the appropriate channels because they fear the consequences of making a complaint. As a matter of urgency the MoD and the Commissioner should investigate this matter and report their findings to us in response to our Report.

Complaints in the single Services

17. In each of her Annual Reports, the Commissioner gives an analysis of the number of potential Service complaints received by her office and the overall number of complaints for each Service (this includes those made direct to the chain of command). She also assesses the performance of each Service in implementing the Service complaints system and potential challenges and problems that they face.[25]

18. In her 2011 Annual Report, the Commissioner noted that as in previous years the majority (65%) of the 435 contacts her office received about issues that might be the subject of a Service complaint were from Army personnel. The Royal Navy accounted for 13% and the Royal Air Force 20%.[26] However the Commissioner also noted that although the number of contacts from the Army was proportionately higher than its force strength, its percentage share of contacts to her office was slightly less than in previous years (69% of all such contacts between 2008 and 2010).[27] It is important to state that the number of potential complaints received by the Commissioner reflected a very low proportion of the total number of Service personnel in UK Armed Forces (at 1 April 2012: 185,690 full time trained and untrained personnel).[28] The Commissioner's 2011 Annual Report also said that in 2011, the rate of increase in potential complaints from or about Army personnel (16%) was slightly lower than that for the Royal Navy (18%) while the RAF's was higher (46%).[29] Figure 1 below shows the number of potential complaints received by the Commissioner for each Service between 2008 and 2011.

19. It was unclear what the reason was for the RAF having the highest level of increase which, even discounting those potential complaints from officers deselected from flight training, was double that of the Army.[ 30] The Commissioner noted that the increase in part could be attributed to greater confidence in making a complaint, although the increase in contacts to her contrasted with a 10% reduction in the number of Service complaints made at Level 1 to the RAF. The Commissioner argued that this suggested that RAF personnel still wished to have the assurance of her overseeing their complaint.[31]

20. We were keen to establish whether the Commissioner had identified any systemic problems in the three Services which might lead to Service complaints. She told us that the three Services shared some systemic weaknesses, but there were also differences between them. She said:

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.[32]

21. In the assessment of the Commissioner, each of the Services faced different challenges and priorities in their handling of Service complaints. The Army had a "huge backlog at the unit level and throughout the system, particularly at Army Board level" to which it had devoted more resources to resolve and ensure the more timely handling of cases.[33] In 2012, the RAF had changed the way it handled complaints, after the Commissioner attended a RAF Board meeting, as it also had "huge backlogs at unit level" as it required lawyers to advise on complaints at every stage of the process. The Commissioner told us that during the Libya campaign "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".[34]

22. The Royal Navy had taken a different approach in its handling of complaints and had seen positive results. The Commissioner told us the Royal Navy had seen startling results. In 2011, it had resolved large numbers informally and upheld three quarters of complaints that, either in whole or in part, that came to the Navy at level 2. This was due to the majority of complaints, whether through the Commissioner or to the Royal Navy directly, being about a procedural irregularity or maladministration, for example pay, allowances, promotion or posting. Rather than putting them into a queue until somebody could look at them, the cases were triaged and if the caseworker and lawyer thought a mistake had been made, they contacted the individual and asked for their thoughts on how the matter should be resolved. The Commissioner told us that "the Royal Navy had a backlog at the Navy Board level" and "had put additional resources in at unit level, ship level and at the Navy Board level and [were] now zipping through their cases". The Commissioner thought the Navy was doing very well in the handling of complaints but she warned the improvement must be sustainable. She highlighted the danger of changing personnel but thought the Royal Navy was in a good position to "lead that continuous improvement approach". The challenge would be to ensure lessons were learned from complaints and stopping the causes of complaint from arising in future. She described this as the efficiency circle she was looking for.[35]

23. We commend the work that the Commissioner has undertaken with the Services to identify systemic failures that could lead to potential Service complaints and we expect this work to continue so lessons are learned for the future. It is essential that each of the Services continuously learn lessons from the complaints they receive and ensure that appropriate steps are taken to stop the causes of the complaints arising in the future. This will lead to a more efficient system and release resources to deal with other areas in the complaints system. The MoD, the Commissioner and the single Services should undertake further work to improve the way weaknesses are identified and lessons learnt. Attention should be given to the areas that the Commissioner has already identified as demonstrating systemic weaknesses such as pay and allowances, the application of policy and procedure and the relationship between the criminal justice system, the military system and the Service complaints system. The MoD should set measurable aims, objectives and targets for improvements in these areas and these should be included in the response to our Report.

24. We note the challenges that the Commissioner has identified for the individual Services. We note the large backlogs at the unit level in the Army and RAF and expect action to be taken and appropriate resources identified to clear them. We also note that the RAF required lawyers to be involved at every stage of the complaints process. This had caused difficulties during the Libya campaign as the number of lawyers was capped and they were required for other duties. While operational requirements will always be paramount, the MoD should investigate actions that could mitigate this in the future, for example whether lawyers from another Service could be used or whether lawyers are always necessary at every stage.

25. We commend the Royal Navy for the way it has approached the handling of complaints and reducing its backlogs but it must guard against complacency. Although each case is different and the complainant must always have the final decision on whether to pursue a formal complaint, the Royal Navy's practice of, where possible, resolving complaints informally is advantageous. We hope that the Army and RAF will follow and adapt this approach to their circumstances.

Prescribed complaints

26. The Commissioner's Annual Report for 2011 analysed the number of potential prescribed complaints by categories of behaviour (see Figure 2 below).[36] There were increases in contacts to her office in 2011 about bullying, harassment, improper behaviour and victimisation.[37] However she noted decreases in contacts about unlawful discrimination i.e. on the grounds of sex, race, sexual orientation and religion, and on more general allegations of discrimination (referred to by the Commissioner as bias).[38] She noted that allegations of sexual and racial harassment remained low.[39]

27. The Commissioner reported that most of the allegations she received about bullying involved alleged abuse of power or undermining authority, particularly regarding non-commissioned and commissioned officers and regarding Servicewomen.[40] There were also a small number of allegations in the Army from private soldiers which due to their serious nature had been referred from the Commanding Officer to the Royal Military Police which meant action on the Service complaint was suspended while the police investigated.[41] Complaints of victimisation continued to rise but the Commissioner stated the numbers were too small to draw any conclusions.[42] However she also noted increasing concern being expressed on this in the Armed Forces Continuous Attitudes Survey for 2011. In her 2011 Annual Report, the Commissioner said:

Of around a thousand Service personnel who said they had suffered some sort of discrimination, harassment or bullying in the previous year but had not made a formal complaint, just under half (49%) said the reason was fear it might adversely affect their workplace or career. The percentage was higher for Royal Navy Officers, 65%, and this was higher than the previous year.[43]

There was also a continuing upward trend in complaints about improper behaviour, which included dishonesty and alleged failings of the standards expected.[44]

28. The Commissioner found a relatively low level of, and decline in, allegations of sexual harassment.[45] This contrasts with an Equal Opportunities Commission and MoD survey in 2006 where over two thirds (67% (6313)) of survey respondents had encountered in the previous 12 months sexual behaviours directed at them personally. These varied from making unwelcome comments, sending sexually explicit material and unwanted touching through to sexual assaults.[46] There were also media reports following our evidence session with the Commissioner which said that according to an internal Army report every single woman questioned said they had been the victim of unwanted sexual attention.[47] Answers to Parliamentary Questions on the number of allegations of sexual offences within the Armed Forces and associated media reports have called into question the MoD's statistical information.[48] In a Westminster Hall debate on military justice on 31 January 2013, Mark Francois MP, Minister of State, MoD, acknowledged that there was no single, consolidated set of statistics relating to sexual offences involving members of the armed forces, and there are considerable practical obstacles to producing such a comprehensive overall report. He thought it would be difficult, with the data that the MoD had available, to provide an overall and comprehensive report.[49] He added:

I have been pressing my Department hard to produce the most accurate information possible. That work is still in hand. It is complex, and given the seriousness of the subject, we must be thorough, but the initial trends suggest that incidents of sexual offences in the armed forces are declining.[50]

29. When taking post, one of the three goals the Commissioner set was to reduce the gap between the "overall level of anonymously reported incidents of bullying and harassment, assault and so on" that appeared in the Armed Forces Continuous Attitude Survey and the Recruit Training Survey, and the levels of complaints.[51] She added:

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.[52]

30. Although the underlying trend in incidence was going down, the Commissioner found that complaints to her office about bullying and assaults, in particular in the Army were increasing.[53] She noted that in the last year a "significant number of serious complaints" had been made in the Army in relation to physical and sexual assaults. She had raised the issue with the Adjutant General and had proposed that an inquiry should be held. This was under consideration.[54] The Commissioner thought that "there [were] some real lessons in relation to the complaints coming forward at present, because they should be dealt with better".[55] The Commissioner deals with Service complaints and pointed out that if an allegation comes forward relating to a potential criminal matter such as rape and sexual assaults, the Service complaint is put on hold and it goes into the justice system.[56] The Commissioner regarded this as "right and proper", but she also told us:

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.[57]

31. We note that the number of contacts that the Commissioner receives about bullying, harassment, improper behaviour and victimisation has continued to increase. Although this may indicate an increasing confidence in reporting such matters, it also suggests continuing problems in these areas. We are concerned about the continuing gap between anonymous reporting of incidents in the Armed Forces Continuous Attitude Survey and the Recruit Training Survey and the actual numbers of complaints. Further action is required to address this disparity. We note that the Commissioner has requested that the Adjutant General undertake an inquiry in relation to the serious complaints that she received in 2012 in respect of the Army. The MoD should update us on this as part of its response to our Report and we expect to see the report of any inquiry that the Adjutant General initiates.

32. We are concerned that the number of sexual harassment and other sexual offences allegations made to the Commissioner remains low. Other evidence, such as the 2006 Equal Opportunities Commission and MoD Survey into sexual harassment in the Armed Forces, suggested that the incidence of such offences was a lot higher than the number of complaints would indicate. We also note that a number of complainants when going to the Commissioner with issues that are not about rape or sexual assaults cite such incidents from their past as contributing to their not trusting their chain of command. We note that the MoD is attempting to produce the most accurate information possible but it is inappropriate for them to fail to provide accurate figures in answers to Parliamentary Questions. Without accurate figures, the MoD is unaware of how severe a problem it is dealing with in relation to sexual offences within the Armed Forces or what measures it is required to take to rectify the offences committed. We recommend that the MoD instigate new research into the level of sexual offences in the Armed Forces and the actions required to tackle it and to encourage possible victims to report such allegations whether to the Commissioner, the Royal Military Police or the chain of command.

33. The Commissioner thought it was often the case that complainants preferred to contact her rather than the chain of command about potential prescribed complaints. She told 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.[58]

34. We are disappointed and concerned that Service personnel who felt they had been the victim of a behaviour which may give rise to a prescribed complaint did not have confidence to pursue this matter through the chain of command. While it is entirely appropriate and understandable that potential complainants would prefer to make use of the Commissioner, we are concerned that some Service personnel may decide against pursuing their grievance altogether. The MoD and Service Chiefs should commission research into the reasons for the lack of confidence in the chain of command to deal with prescribed complaints. The MoD should also review the systems in place for monitoring the performance of commanding officers in respect of these complaints.

Harassment Investigation Officers

35. Following the Commissioner's 2009 Annual Report and a cost benefit analysis by the MoD, new arrangements for the investigation of prescribed complaints of bullying and harassment were introduced in 2012.[59] Specially selected and trained fee-earning Harassment Investigation Officers (HIOs) would be available to all three Services and the MoD, to investigate such complaints. The new HIOs who are from outside the MoD, and do not work for the Commissioner, are engaged to undertake investigations on an ad hoc basis. This replaced the previous arrangement whereby former HIOs (civilian and Service volunteers) had to undertake such investigations in addition to their normal duties, a major cause of delay and reduced quality in the handling of such Service complaints. The full operating capacity of 50 dedicated HIOs was in place by August 2012. According to the MoD there are currently 60 HIOs who could be called upon.[60] The MoD set out the aims and principles of HIOs as follows:

The new FEHIO [fee-earning Harassment Investigation Officers] service is based upon the principle that it should support the timely and thorough completion of investigations once the need for an HIO has been identified. The aims of this service are to remove delays in the appointment of HIOs and in their subsequent production of reports, and to improve the quality of investigations given that the FEHIOs will be conducting investigations on a more regular basis (unlike the civilian and Service volunteers for whom this was a secondary role). The timescale will be for investigations to be completed and a final report submitted within 30 working days of the FEHIO being appointed. There will be close liaison between FEHIOs and Deciding Officers (DOs) to ensure that delays due, for example, to the unavailability of witnesses are understood by all parties to the complaint, and that by exception reasonable extensions to the investigation are agreed. The need for the HIO to report to the DO on progress every 5 working days beyond the 30 working days timescale will ensure that momentum is not lost.[61]

36. We support the introduction of fee-earning Harassment Investigation Officers (HIOs) to replace the previous system of civilian and Service volunteers who undertook this role in addition to their normal duties which caused delays in dealing with complaints. This should lead to an improvement in the investigation of MoD civilian and Service bullying and harassment complaints. We commend the MoD for recruiting the full operating capability of 50 HIOs by 1 August 2012. We recommend that the MoD continue to increase the number of HIOs to ensure that there is always sufficient capacity available especially if there is a surge in the number of the bullying and harassment complaints. The MoD should also consider similar arrangements for the investigation of other complaints. We further recommend that the Commissioner undertake an analysis of the effectiveness of HIOs at the end of 2013 and this should be included as part of her 2013 Annual Report.

Complaints about discharge and medical treatment

37. In her 2011 Annual Report, the Commissioner noted that two types of non-prescribed potential complaints had increased: those relating to discharges and those involving medical treatment.

Discharge

38. The Commissioner said that complaints about discharge were not primarily about redundancy.[62] However towards the end of 2011 she had begun to receive potential complaints as the results of appeals against selection for redundancy were known.[63] Complaints about discharge included allegations that wrong procedures had been used.[64] She noted that:

As large numbers of Service personnel leave the Services over the next few years, it will be important to use the Service complaints system as a means to identify potential weaknesses in the discharge processes, to make the transitions as smooth as possible. There is a risk that reductions in the personnel and back office functions of the Services and MOD will lead to more complaints of maladministration.[65]

39. We agree with the Commissioner's warning that as many Service personnel leave the Services over the next few years there is a potential for an increase in Service complaints regarding discharges, particularly as there may be reductions in the personnel and back office functions of the Services and MoD. It is important that the MoD and the Services take pre-emptive action to lessen the impact of this and prevent a possible increase in complaints. A vital part of this will be learning lessons from previous complaints regarding discharge procedures.

Medical treatment

40. According to the Commissioner's 2011 Annual Report, complaints about medical treatment fell into three areas:

medical examination as part of the recruitment process: A number of recruits complained in 2011 about miscommunication during the recruitment process of information about medical conditions. This appeared to be about conditions that should have prevented them from being accepted for training and not simply that the training tested their fitness, which would not have been picked up sooner. Similar comments were also received by the Commissioner during visits to training establishments. The Inspector General of the Defence Medical Services is undertaking an investigation;
treatment by defence medical staff and medical discharges: A number of these have been resolved before a formal complaint has been made. An over-defensiveness on the part of the medical unit or delay can escalate what might have been resolved without further claims, for example for medical negligence. There appeared to be some confusion and delay caused by the necessity to first exhaust the two stage medical treatment system, before a Service complaint can be actioned; and
the interplay between medical treatment and the chain of command: The Commissioner thought that some complaints which appeared to involve concerns about medical treatment were in essence concerns about treatment by the chain of command. These often appeared to be about poor communication and management. In referring them, the Commissioner flagged up her assessment of the nature of the potential complaint, and why she did not believe it needed to be diverted to the special medical complaints process. In a number of cases the Commissioner may also suggest that the complaint might be resolved informally.[66]

41. The Commissioner acknowledged that the Surgeon General took a continuous improvement approach to complaints and had ordered a review of medical complaints processes used across Defence Medical Services (DMS).[67] The Commissioner had recommended that the MoD, DMS and Services considered implementing a system for medical treatment similar to that for Service complaints about redundancy.[68] The MoD had committed itself in its response to this recommendation to work with DMS to consider what experience from the redundancy appeals process might benefit the work on the review.[69]

42. In oral evidence the Commissioner noted that, despite the rise in complaints about medical treatment in 2011, the numbers had fallen in 2012.[70] She added:

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.[71]

43. We note the rise in 2011 of potential Service complaints in respect of medical treatment and welcome the reduction in the numbers which the Commissioner anticipated for 2012. We welcome the Surgeon General's commitment to a continuous improvement approach to complaints. In response to our Report, the MoD should update us on progress on the review of medical complaints processes used across Defence Medical Services, particularly on lessons that might be learned from the complaints system for redundancy appeals process.

Reform of the Service complaints system

44. In her 2010 Annual Report, the Commissioner reviewed the performance of the Service complaints system against the three year goals she had set when the new system came into operation in 2008.[72] She concluded that, although there had been some improvements, the system was not efficient, effective or fair.[73] She had recorded this conclusion in all her four Annual Reports and also concluded that the current system was not sustainable and needed simplification and redesign.[74] The Commissioner recommended that a fundamental review be undertaken to achieve this.[75] She also recommended changes to the system and to her role (see Chapter 3). Her recommendations for improving the system focused on:

Improving the investigative process;
Simplifying the system (including removing one level of appeal); and
Improvements to the Service Complaints Panel process.[76]

45. In its response to the Commissioner's 2010 Annual Report, the MoD agreed to include the areas above in the review of the Service complaints system which the Service Personnel Board (SPB) had already decided to instigate at the end of 2010.[77] The review commenced in 2011 and its findings were considered by the SPB in June 2012 with the Commissioner in attendance.[78] Agreement was reached on a range of measures to be taken forward. The review concluded that, although recent incremental improvements were starting to be beneficial, more needed to be done to reduce undue delay in the system which the Commissioner had identified in her 2011 Annual Report as one of the key reasons why she was unable to report that the system was working efficiently, effectively or fairly.[79] The review concluded that the system's performance was affected by three main factors and proposed measures to address them which are set out in the box below.[80] These changes were to be complemented by changes to the Commissioner's role (see Chapter 3). The MoD committed to update the Commissioner on progress on these measures, and where necessary against recommendations from her earlier Annual Reports, in 2012, in order to inform her 2012 Annual Report which is expected in Spring 2013.[81]

Table 2: Changes to the Service complaints procedures

Issue Action to be taken

Demand and Resources: the volume of complaints in the system and the sufficiency and efficiency of available resources to respond to them. Encouraging greater use of informal resolution such as mediation, nipping complaints in the bud early and reducing time taken and resource pressures; ensuring effective processes are in place for issues such as pay and allowances, housing and appraisals, to resolve complaints without subsequent recourse to the Service complaints system; removing bureaucracy).

Delay: its causes, and whether they are system-generated or result from the action or inaction of individuals. Replacing the current set of timelines for each level with a single timeline and target, with the single-Services monitoring progress to ensure complaints are kept moving against interim timelines so that critical points are flagged and action taken to address delays; reinforcing the message that effective complaints handling is a function of command, and that early and timely handling of issues/grievances, whether formally or preferably informally, has a direct benefit for unit cohesion and effectiveness.

Appeal: the lack of restriction on what can be appealed and the number of levels available. Exploring how to focus the basis for appeals more tightly so as to reduce those based on spurious grounds and to provide a sharper focus for subsequent action by the chain of command; continuing to assess the reasons for appeals/escalation so that we can, as the Army did in 2010, consider for example whether levels of authority for granting redress are at appropriate levels, and can learn lessons to prevent recurrence.

Source: Ministry of Defence Written Evidence, Ev 15

46. Although the Commissioner had suggested that the review be carried out and was involved in it, she was disappointed in its outcomes and the length of time, nearly two years, it had taken to be completed. She told us "it was too long" and "it wasn't fundamental and I don't think the methodology was going to achieve what they wanted".[82] We discuss the changes made to the Commissioner's role and possible further changes in Chapter 3. The Commissioner agreed with the MoD's assessment that the three main factors affecting the performance of the system were resources, delays and appeals but thought the measures to be taken were insufficient and too slow.[83] She told us:

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.[84]

47. We agree with the Commissioner that the review of the Service complaints system took too long. Given that she had reported in her Annual Reports that the system was not efficient, effective or fair, the review should have been given more urgency.

48. We are concerned that the Commissioner sees the review of the Service complaints system as a missed opportunity. The changes to deal with issues relating to demand and resources, delay, and appeals while beneficial in themselves are tweaking a system that needed to be fundamentally redesigned and simplified. The MoD must demonstrate to us, and more importantly to Service personnel, that the changes will bring real benefits and lead to a fairer and more efficient system. In response to our Report, the Commissioner and the MoD should set out how they will measure the effectiveness of these changes. If they do not produce the desired effects the MoD should commit to an early and speedy reassessment of them and to further, more fundamental, changes.

49. We agree with the Commissioner that the Service complaints system is too complex and needs to be simplified. For example, three levels for the resolution of complaints is too many and adds to the length of time taken to resolve them. The MoD should reconsider the Commissioner's proposal that one level of appeal in the system should be removed.

3 Ministry of Defence, Joint Service Publication 831, Redress of Individual Grievances: Service Complaints issue 2.2, 7 June 2010. Available at: https://www.gov.uk/government/publications/jsp-831-redress-of-individual-grievances-service-complaints . Referred to hereafter as JSP 831. Back

4 Ev 14 Back

5 Ev 14 Back

6 Ev 14 Back

9 Ev 16 Back

10 Service Complaints Commissioner for the Armed Forces, Annual Report 2011, March 2012, p 18 Back

11 JSP 831, para 1.15 Back

12 JSP 831, para 1.16 Back

13 In the UK Armed Forces, typically a Commodore, Brigadier or Air Commodore Back

14 Ev 15 Back

15 Service Complaints Commissioner for the Armed Forces, Annual Report 2011, March 2012, p 18 Back

16 Ibid Back