Armed Forces (Service Complaints & Financial Assistance) Bill [HL]

Written evidence submitted by Service Complaints Commissioner (AF 01)

1. The current Service complaints system is over-engineered and measures put in place to offer additional protection to Service personnel because of their unique status, are unintentionally causing delay and subsequent unfairness. The system needs to be simplified and made to operate faster. Independent scrutiny by an Ombudsman of how a complaint is handled will offer more protection to individuals, will increase fairness and will increase confidence amongst Service personnel that their complaint will be dealt with properly. In the majority of cases where the substance of a complaint has been decided wrongly or the correct redress is not offered, this will have been as a result of maladministration in the handling of that complaint. The proposed system places the responsibility to resolve complaints firmly on the chain of command but also ensures that chain of command is held to account for its actions. A tighter process with the complaint being considered in the first instance by someone with the authority to grant redress and then one level of appeal will enable complaints to be resolved more quickly, especially if the Services make the cultural changes that are needed alongside these legislative steps.

2. I am supportive of the Bill. However this note covers my priority concerns on the current version as drafted, issues covered by the HCDC Report and other issues that I would like to bring to the Bill Committees attention.

Priority Issues

3. The Service Complaints Commissioner (my predecessor, Susan Atkins) has previously raised the following concerns with the HCDC and with the Minister, which I support as priorities:

i. Any maladministration vs the maladministration – We consider that it is essential the Ombudsman can make a finding and recommendations relating to maladministration that was not highlighted by the complainant. The Ombudsman should be an accessible service that does not put an administrative, intellectual or financial burden on the complainant.

ii. Secretary of State regulations about Ombudsman procedure – We accept MOD’s requirement to ensure there is some accountability but this should be limited to principles or matters of national security.

iii. Thematic reports – We believe the legislation is not clear and the Ombudsman should be able to make thematic reports related to her work, this is not the same as thematic investigations.

iv. Nature of Applications to the Ombudsman - We do not believe there should be a requirement for applications to the Ombudsman to be in writing. The Local Government Ombudsman got their legislation changed and operates very effectively with phone applications. The PHSO has the PASC Committee’s support to make the same change.

Issues raised by the HCDC

4. Additionally, the following evidence is offered against the HCDC recommendations:

Amendment group A (paragraph 19 of the HCDC report) Terms of Appointment

i. An individual should be appointed on merit. There is an advantage to be gained from the fresh perspective that comes by recruiting someone who does not have a background in the Armed Forces. Equally there is a risk that someone who has been a senior officer in the Services for years and is most likely still connected to senior serving personnel, even if they left 5 years ago, will be perceived as ‘one of them’ and the independence of the office will be compromised. However a blanket exclusion is equally undesirable; someone may have served as a reservist or left at a relatively junior level with subsequent experience outside of the Armed Forces making them a credible candidate for the role of Ombudsman.

Amendment B (paragraph 25 of the HCDC report) Tenure of the Service Complaints Ombudsman

ii. A standard appointment for an Ombudsman is five years and this is reflected in the Ombudsman Association criteria that "The term of office should be of sufficient duration not to undermine independence. The appointment should be for a minimum of five years." Therefore it would be helpful for legislation to specify that the initial appointment is for a period of five years. The ability to extend for three years is sensible.

Amendment C (paragraph 29 of the HCDC report) Procedure for making a complaint and determining admissibility

iii. A requirement for the Defence Council to consult the Ombudsman on the procedure for making a complaint and determining admissibility would be a helpful clarification.

Amendment group D (paragraphs 42 and 45 of the HCDC report) Ombudsman Investigations

iv. The employment relationship is at the heart of the Service complaints process. It is particularly important that the system is designed to make the employer, the chain of command, deal with complaints promptly and effectively and hold them publically to account for doing so, rather than give them an ‘opt out’ on the basis that someone else can investigate it for them. The quickest way to resolve a complaint will be by a suitably empowered person, within the relevant Service, accepting it is a priority amongst their other responsibilities to investigate and put right.

v. However, I do acknowledge that if the proposed model fails, the powers of the Ombudsman may need to be reviewed. Additionally there may be very exceptional cases where Ministers or the Services would find it beneficial to be able to ask the Ombudsman to review the substance of a complaint so inserting a clause which enables the Secretary of State to ask the Ombudsman to investigate the substance of individual cases as he saw fit would be a very sensible measure and would not remove the impetus from the chain of command to deal with things themselves in the majority of cases. Giving the Ombudsman the power to investigate the substance runs the risk of overwhelming the Ombudsman and encouraging escalation rather than resolution. Were the Ombudsman to hold these powers, further resources would be required.

vi. Whether or not any clause is inserted which provide the Ombudsman power to investigate the substance, the legislation is currently not clear that the Ombudsman can investigate and report on ‘any maladministration’ rather than just ‘the alleged’ maladministration. This should be amended at 340H (4)(a) and 340L(2).

Amendment group E (paragraph 52 of HCDC report) Procedure on Ombudsman Investigations

vii. No objections to this proposed text.

Amendment F (paragraph 57 of the HCDC Report) Report and recommendations

viii. No objections to this proposed text

Amendment group G (paragraph 63 of HCDC report) Action following receipt of report

ix. Whilst it is important that the Ombudsman’s findings are binding, it does not follow that the Ombudsman’s recommendations should also be binding. The normal position for an Ombudsman overseeing a public sector organisation is that their recommendations will be considered ‘highly persuasive’. This enables the organisation to make the final decision about the best way to fix a problem. The alternative risks the Ombudsman making a binding recommendation that turns out to be impractical. The ‘highly persuasive’ nature of recommendations should be backed up by a clear entitlement to publish anonymised reports of investigations.

x. It is very possible that the Ombudsman’s reports will include reports where there are no recommendations, including those where the Ombudsman finds that there has been no maladministration or potential injustice. For that reason the words 'if any' should be retained in the Bill.

Amendment H (paragraph 74 of HCDC report) Thematic Reviews

xi. The Bill should enable the Ombudsman to make thematic reports. This should not be an unrestricted power but should be bounded by the purpose of the role, for example the Ombudsman might review a number of complaints and find that the system is not working well to address the cause of such complaints and therefore produce a report on how this might be addressed. Service Chiefs have valued the contribution of the Service Complaints Commissioner as an independent eye looking at the adequacy of their welfare actions and it would be beneficial for the Department, the Services and to public confidence for the Bill to make provision for reports of this sort.

Other Issues

5. I have also given some consideration to the issue of complaints by family members

i. There is merit in allowing discretion for an individual’s personal representative or a family member to make or continue a complaint on behalf of a complainant who is deceased or otherwise unable to act. However I also have concerns about this being allowed in all circumstances, for example in some cases fairness may be compromised in progressing a complaint in the absence of evidence from the Service person. The Services will also have to consider the entitlement of the personal representative or family member, particularly if there is disagreement between immediate family members. I therefore conclude that some flexibility in this matter is the best approach, perhaps giving the Services (and the Ombudsman) discretion to investigate complaints made by the personal representative or a family member. The Ombudsman could play a valuable role in reviewing whether the discretion was exercised properly, reasonably and fairly.

February 2015

Prepared 10th February 2015