Appendix 1: Government response
The MoD shares the Committee's view that the Service
complaints system is an important part of ensuring that the duty
of care that the nation owes to its Service personnel is carried
out effectively. The system has evolved considerably since its
introduction in 2008, and continues to do so. MoD acknowledges
that despite progress in some areas there remains more to be done
to meet the needs and expectations of members of the Armed Forces.
Performance is still not consistently good and backlogs, whether
from 2012 or before, can have a detrimental impact on individuals
and on the working of the system. MoD is determined to fix these
deficiencies. The progress made by the Royal Navy shows what can
be achieved within the current system. The changes made in January
this year should help deliver further improvements. But it remains
clear that we also need to step back and take a view, with the
SCC, of what further improvements might be made to the overall
system. This work is underway.
The SCC has informed the Committee in her own response
that we have met to consider the implications of joint recommendations
and to coordinate a way forward. The MoD will respond shortly
to the SCC's Annual Report for 2012 which will provide an opportunity
to report further progress.
Confidence in the Complaints System
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.
(Paragraph 15, Conclusion 1)
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. (Paragraph 16, Recommendation 2)
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. (Paragraph 31, Recommendation
6)
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. (Paragraph
34, Recommendation 8)
The MoD is concerned by any suggestion that Armed
Forces personnel are reluctant to raise genuine grievances whatever
their origin. With the SCC it will take these related recommendations
as one. We will identify and scrutinise existing sources of relevant
material (e.g. surveys completed or planned) and where necessary
consider new avenues, which could include approaches to personnel
most likely to have experienced certain situations or sending
questionnaires to those who approach the SCC. It has not been
possible to complete this research in time to report findings
to the Committee. MoD will keep under review current procedures
for monitoring COs' performance in handling complaints.
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. (Paragraph
32, Recommendation 7)
Criminal activity involving sexual offences cannot
be dealt with by the Service complaints process, nor therefore
by the SCC, but is a matter for the separate and independent justice
system. Work is ongoing to determine more accurately the level
of sexual offences involving members of the Armed Forces, as highlighted
in the debate secured by Madeleine Moon MP on the Service Justice
System on 31 January this year. The results of this work, together
with any relevant insights from the work on the recommendations
above, may also help to inform our understanding of what action
we might take to increase confidence in raising allegations of
this nature.
Learning Lessons
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. (Paragraph 23, Recommendation 3)
Work is in hand, but MoD recognises that, to be more
effective, a more systematic approach is needed to gathering and
exploiting lessons. It will have an initial lessons learnt process
in place by July 2013, and will monitor and adapt it as necessary
through to being fully operational by December 2013. Progress
will be reviewed periodically by MoD Head Office and the single
Services at Director level.
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. (Paragraph
39, Recommendation 10)
Pre-emptive action can be taken through, for example,
risk assessments or learning from complaints. The action on recommendation
3 is expected to improve our ability on the latter. The Army has,
for example, learnt lessons from its earlier redundancy tranches
and made changes aimed at reducing the likelihood of appeals based
on the same grounds in the current round.
Clearing and Preventing Backlogs
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. (Paragraph 24, Recommendation 4)
The use of Reservists and of trained investigators
from outside the complaints arena is being explored to clear backlogs
and to prevent them. Using the new reports, the Army is improving
the accuracy of its data on the extent of its backlog and its
understanding of what causes delay, and is holding individual
Formation HQs to account for bearing down on open cases. Early
indications are that this is having a positive effect on progressing
older complaints at the CO level.
The RAF's early analysis of the impact of the steps
taken last year to reduce COs' reliance on legal advice shows
an average reduction of some 46 days in the time taken to progress
complaints. If this continues to be beneficial and, for example,
there is no increase in appeals, the RAF will consider extending
the practice to level 2. The RAF is also investing in legal awareness
training for its HR professionals so as to further reduce the
call on legal advisers.
The Services already share legal advisers, for example
when there may be potential conflicts in individual cases, but
they are each under resource constraints and must guard against
anything which might otherwise affect the ability to deliver business
in a timely manner for their own Service.
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. (Paragraph 25, Recommendation 5)
The RN recognises fully the need to build on its
success and to not become complacent. It is looking to extend
its practice of identifying potential "quick wins" to
level 1 complaints where possible. The case for mediated resolution,
where this is appropriate, and the championing of informal resolution/quick
wins continues to be communicated to all Legal Advisers at Naval
Legal Service Termly Updates and on the Annual Training Course.
In her Annual Report for 2012 the SCC comments on
the increased use of informal resolution across all three Services.
The Army and RAF are already building on that progress: the Army's
central caseworkers remind those handling complaints in the chain
of command that the fact that a formal complaint has been raised
does not preclude continued attempts at informal resolution, and
the subject is covered in Commanding Officers (Designate) and
Adjutants training courses; the RAF has reinvigorated its emphasis
on informal resolution, notably through roadshows with the Garnett
Foundation which advocate mediation. Both Services are looking
to learn from the RN's more flexible approach, where appropriate
to the configuration and role of their own Service.
Handling of Prescribed Complaints
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. (Paragraph 31, Recommendation
6)
This inquiry relates to a particular Service complaint
that is currently under investigation. Once complete, the lessons
from all relevant areas will be drawn together. The SCC will be
consulted as part of the follow-on inquiry. MoD will consider
with the Committee Chair how best to inform him of the outcome
and conclusions when the work is complete.
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. (Paragraph 36,
Recommendation 9)
Work is in hand to assess whether the cadre of harassment
investigation officers is achieving the performance expected of
it. In addition to existing metrics, we are looking at how we
can assess whether complainants or respondents go on to make further
complaints for example on the conduct, outcome or timeliness of
HIO investigations. The performance of the HIO arrangements will
be analysed in July this year, so that we can adapt as necessary
before a final evaluation of effectiveness at the end of the year.
This work will also show whether the number of investigators is
sufficient. The narrow scope of bullying and harassment investigations
suits the HIO cadre model, but it may not be transferable to providing
widely deployable investigators for complaints about, for example,
single Service terms and conditions of service. We shall, however,
explore the potential for other ways to build investigative expertise.
Miscellaneous
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. (Paragraph 43, Recommendation 11)
A single, tri-Service process for handling medical
and dental complaints is being finalised and will be published
shortly. During its development, best practice from the Service
complaints process and from the SCC's Annual Reports was shared
with the medical staffs as were the Principles of Fairness that
guide complaints handling. The medical staffs also drew on the
NHS complaints process for best practice. There was nothing from
the process for bespoke redundancy appeals that would further
enhance the proposed medical complaints process.
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.
(Paragraph 47, Recommendation 12)
It was not a lack of urgency that contributed to
the time taken to conduct the review, rather a need to build a
body of evidence to help identify how the system was being used
based on reforms that had been made to that point, and where future
improvements might then be focussed. To provide that evidence,
we tracked individual new complaints that were raised during 2011.
The Service Complaints Commissioner's work is
an integral part in delivering the Armed Forces Covenant. We are
surprised and concerned that the MoD did not consult the Commissioner
during the development of the Armed Forces Covenant or on the
Annual Reports on the Covenant. We welcome the MoD's intention
to give the Commissioner an opportunity to comment on statements
made about the Service complaints system in future Annual Reports.
Given the insight and information the Commissioner receives about
the experience of Service life which is often wider than that
of Service personnels' treatment by the chain of command, we believe
that there would be value in the Commissioner being consulted
on the draft Annual Report as a whole and in her joining the Covenant
Reference Group. (Paragraph 78, Recommendation 19)
MoD stands by the commitment given to the SCC that
she will see the draft Annual Report. Members of the Covenant
Reference Group are drawn from bodies that can have a direct bearing
on the delivery of the Covenant's aim that our personnel experience
no disadvantage particularly in respect of public services. To
that end, representatives from other ombudsman or commissioner
bodies attend by invitation, when agenda items directly concern
their area of expertise, as the SCC has done in the past.
Effectiveness of the Current System
In view of the Commissioner's evidence that "some
of the Service Chiefs said they didn't quite understand what an
ombudsman did, but they were sure they didn't want one",
it is clear that discussions between the Service Chiefs and the
Commissioner have not been as productive as they should have been.
The MoD's wish to preserve the role of the chain of command in
investigating and resolving complaints has been accepted by the
Commissioner. The 2012 Armed Forces Covenant Annual Report said
that there was more benefit to be gained for improving timeliness
and tackling undue delay if the Commissioner were engaged whilst
complaints were still live rather than her post becoming an ombudsman
acting after the event. This contrasted with the Commissioner's
view that any Ombudsman model which excluded the oversight function
until the conclusion of the internal process would not be effective,
fair or be able to drive through the efficiencies that are required.
While the involvement of an Ombudsman in cases that have not completed
the internal complaints process would not be normal practice in
the UK, we see no reason why the MoD and the Commissioner cannot
agree a model for an Armed Forces Ombudsman that satisfies both
their aspirations and concerns. (Paragraph 60, Conclusion 15)
While we support the changes to the role of the
Commissioner which she has agreed with the MoD, we are disappointed
that the MoD and the Services continue to be opposed to changing
her role to that of an Armed Forces Ombudsman. We repeat the findings
of previous Defence Committees that the Service Complaints Commissioner's
role falls far short of that envisaged by them. We recommend that
the Service Complaints Commissioner's role should be changed to
that of an Armed Forces Ombudsman. In response to our Report the
MoD should set out in full its reasons for opposing the establishment
of an Armed Forces Ombudsman. The Commissioner has regularly reported
that the Service complaints system was not efficient, effective
or fair and that the current system was not sustainable and needed
simplification and redesign. An important first step to rectifying
this would be to resolve the continuing debate on the role of
the Commissioner. The MoD, Services and Commissioner should increase
their efforts to resolve the differences between them on the Commissioner's
role. (Paragraph 66, Recommendation 16)
MoD acknowledges that the complaints system is not
working consistently well, and therefore in a way that our personnel
should rightly expect. The SCC's assessment in her Annual Report
2012 of the progress made by the Naval Service is encouraging,
and we would expect gains made to be maintained and built on this
year across all three Services, sharing best practice where appropriate.
Whilst the changes introduced from January this year
are expected to improve performance, and work is in hand to tackle
the existing backlogs, MoD is open to new ideas for further improvement.
But they cannot be at the expense of maintaining the primacy of
the chain of command, which so critically underpins morale and
discipline particularly in conflict. Against this background,
the key factor when considering more reform is not simply whether
or not to re-title the SCC's role but about how reform would promote
a system that is fair, effective, efficient and quicker to operate.
At the end of April, MoD and the SCC began discussions
to explore what further, specific improvements might be made,
including consideration of how the SCC role might be developed
to achieve the outcomes that we both seek. In particular, we are
focussed on options which offer the best prospect of tackling
delay. At the time of writing, two further discussions have been
held and more are planned.
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. (Paragraph
48, Recommendation 13)
The primary benefit that we are aiming to achieve
is the more timely resolution of a greater proportion of our complaints
whilst maintaining fairness. From January this is being measured
against the new timeline and target of achieving resolution within
24 weeks for 90% of all complaints. These mirror the SCC's first
goal against which she will assess performance next year. MoD
is considering the SCC's recommendation that a review of the 24
week time target should also include an assessment of the cost
of the complaints system. A secondary benefit, which impacts on
timeliness and on confidence, would be a reduction in appeal rates.
The new, two-monthly reports will help assess performance against
the timeline and target.
We believe there would be value in the Commissioner
being able to undertake research and report on thematic issues
in addition to her Annual Reports. We appreciate that this would
require additional resources but the Commissioner's experience
on these issues should be utilised. The MoD should examine whether
any legislative changes are required to enable this to occur.
(Paragraph 69, Recommendation 17)
We will consider this fully as part of the work related
to recommendation 16.
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. (Paragraph 49, Recommendation
14)
The MoD wants a complaints system in which cases
are handled fairly, effectively and efficiently in the SCC's terms,
but also one in which there are proportionate safeguards for our
personnel given their unique employment position. During our review
we examined how we might remove a level, the impact that might
have and the potential benefits. We concluded amongst other things
that removing a level carried a considerable risk of creating
greater backlogs, and would likely involve delegating authority
to grant redress on wider Service or tri-Service issues below
the Defence Council, to an inappropriate degree. It is worth noting
also that ACAS guidance states that in larger organisations it
may be appropriate to have a second level of appeal in an internal
grievance procedure. We shall however continue to explore this
in the course of the work relating to recommendation 16.
We note the Commissioner's assessment she does
not have sufficient resources and that in fact the resources she
has are those that she requested in 2008. A sufficiently resourced
Commissioner and Service complaints secretariats are essential
to an effective and efficient complaints system and raising confidence
in it. It is also vital that current resources are used in the
most efficient manner. While we accept that in the current economic
climate it is not easy to provide additional resources, it is
not appropriate that the Commissioner feels "dissuaded"
from making bids for resources. She should submit her requests
for additional resources and a decision should be made on a case
by case basis. In response to our Report, the MoD should inform
us of the outcome of the discussions on future resources and the
Commissioner should confirm that the additional resources are
adequate to allow her to fulfil her tasks. (Paragraph 72, Recommendation
18)
Bids made by the SCC for additional resources are
considered on a case by case basis, as the Committee recommends,
and will continue to be so. We are committed to providing the
SCC with sufficient resource to fulfil her role, and remain in
discussion with her about what those needs might be, including
the implications of the work described under recommendation 16.
Recruitment of the next SCC
We would like to thank Dr Atkins for her work
as the Commissioner. She has worked ceaselessly to improve the
Service complaints system and to make her post a success. We agree
with Dr Atkins that the new Commissioner should not come from
a military background. It is vital that the Commissioner should
bring an outside perspective to the Service complaints system
and that Service personnel should have confidence in using the
Commissioner's services. We expect the MoD in their response to
this Report to give us their reaction to the Commissioner's view
that the post should be full time. (Paragraph 81, Recommendation
20)
There are no plans at present to change the Armed
Forces Act 2006 which states that a person may not be appointed
as the SCC if he is a member of the regular or reserve forces
(nor if he is employed in the civil service of the state). Previous
military experience can bring credibility and understanding, but
we recognise that it can also have a negative impact as the SCC
and Committee have set out. It is a fine balance, but we are keen
to encourage applications from a wide field and not to exclude
otherwise strong candidates unnecessarily, just as we do not seek
to exclude candidates with previous civil service experience.
The legislation does not specify whether the SCC post should be
filled on a full or part time basis—we will keep this under
review as work in connection with recommendation 16 progresses.
We confirm our intention to hold a pre-appointment
hearing with the proposed new Commissioner. We expect to be fully
involved at every stage and for the MoD to consult us on the process
and the job description from the beginning to ensure sufficient
time for the recruitment process, the pre-appointment hearing
and a smooth transition to the new Commissioner. Most importantly
we expect the MoD to take full account of our views on the suitability
of the proposed new Commissioner for the post. (Paragraph 82,
Recommendation 21)
In recruiting to the SCC post during 2013 we will
ensure that the Committee is engaged in line with the Government's
response, published on 24 January 2013, to the Liaison Committee's
report on Select Committees and Public Appointments, and with
the Cabinet Office guidance on Pre-Appointment Hearings by Select
Committees.
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