DRAFT
Attachment 1
201[] No. 0000
DEFENCE
Armed Forces (Service Complaints) Regulations
201[]
Made - - - - ****201[]
Laid before Parliament ****201[]
Coming into force - - ****201[]
The Defence Council, in exercise of the powers conferred by section 340B(1) of the Armed Forces Act 2006([1]), makes the following regulations:
Citation and commencement
1. These Regulations may be cited as the Armed Forces (Service
Complaints) Regulations 201[] and come into force on [date
to be inserted].
Interpretation
2. In these Regulations—
"the Act" means the Armed Forces Act 2006;
["the Secretary of State regulations"
means]
"in writing" includes communications -
(a) transmitted by electronic means;
(b) received in a legible form; and
(c) capable of being used for subsequent reference;
"Ombudsman" means the Service Complaints
Ombudsman;
"service complaints process" means the
process for the redress of service complaints under Part 14A of
the Act or under any previous process for the redress of individual
grievances under Part 14 of that Act or under any of the Army
Act 1955([2]),
the Air Force Act 1955([3])
and the Naval Discipline Act 1957([4]).
Specified officer
3.—(1) Subject to paragraphs (2) and (3), the specified
officer is the complainant's commanding officer, unless the complainant
has ceased to be subject to service law. If the complainant has
ceased to be subject to service law, the specified officer is:
(a) the person who was the complainant's last commanding officer
or that officer's successor in post; or
(b) such other officer as may instead be appointed
as the specified officer by the Defence Council.
(2) Subject to paragraph (3), if the officer who
would be the specified officer in accordance with paragraph (1)
is the subject of the service complaint, or is alleged in the
complaint to be implicated in any way in the matter or matters
complained of, the specified officer is his or her immediate superior
in the chain of command.
(3) If the officer who would be the specified officer
in accordance with paragraph (2) is also the subject of the service
complaint, or is alleged in the complaint to be implicated in
any way in the matter or matters complained of, the specified
officer is an officer appointed by the Defence Council who:
(a) is of the same rank as, or of equal rank
to, that officer; and
(b) is not so subject or alleged to be implicated.
Procedure for making a service complaint
4.—(1)
A service complaint must be made in writing to the specified officer.
(2) The complaint must state—
(a) how the complainant thinks himself or herself
wronged;
(b) whether the complainant's commanding officer
or his or her immediate superior in the chain of command is the
subject of the complaint or is alleged to be implicated in any
way in the matter, or matters, complained about;
(c) whether the complainant considers that the
complaint is of a description prescribed in [Secretary of State
regulations] under section 340E(2);
(d) if the complaint is not made within the period
referred to in regulation 5(3)(b) the reasons why the complaint
was not made within that period;
(e) the redress sought;
(f) the date on which the complaint is made.
(3) The complaint must also state one of the following:
(a) the date on which, to the best of the complainant's
recollection, the matter complained about occurred or probably
occurred;
(b) that the matter complained about occurred
over a period, and the date on which, to the best of his or her
recollection, that period probably ended;
(c) that the matter complained about is continuing
to occur;
(d) that the complainant is unable to recollect
the date referred to in sub-paragraph (a) or (b).
(4) A service complaint may only be made by one complainant.
Action on receipt of a service complaint and admissibility
[in addition, provision possibly to be made regarding the validity
of a complaint]
(2) —(1) On receipt of a service complaint, the specified
officer must as soon as reasonably practicable decide whether
the complaint is admissible in accordance with section 340B of
the Act. If the specified officer decides that the service complaint
is admissible, he or she must notify the complainant in writing
and refer the complaint to the Defence Council as soon as reasonably
practicable.
(3) For the purposes of section 340B(5)(c) of the Act, a service
complaint is not admissible if—
(a) the complaint does not state an alleged wrong;
(b) subject to regulation 6, the complaint is
made more than three months beginning with the date on which the
matter complained about occurred; or
(c) the complaint is substantially the same as
a complaint brought by the same person which has either been decided
previously under the service complaints process or is currently
being considered under the service complaints process.
(4) In determining the admissibility of a service
complaint, the specified officer must decide whether it is admissible
in accordance with each of sub-paragraphs (3)(a) to (c).
(5) If the specified officer decides that any or
all of paragraphs 3(a) to (c) apply to the matter, or (as the
case may be) to all of the matters complained of, he or she must
inform the complainant in writing that the service complaint is
not admissible, stating the reasons for the decision and informing
the complainant of his or her right to apply for a review of that
decision by the Ombudsman.
(6) If the specified officer decides that the service
complaint is not admissible because any or all of paragraphs 3(a)
to (c) apply (as the case may be) to some, but not all, of the
matters complained of, he or she must:
(a) treat the remaining matters as an admissible
service complaint; and
(b) inform the complainant in writing that
the other matters are not ones about which an admissible service
complaint may be made, stating the reasons for the decision and
informing the complainant of his or her right to apply for a review
of that decision by the Ombudsman.
Period for making a service complaint: further
provisions
5.—(1) Certain
matters, such as housing or pay and allowances, can be complained
about using one of a specific set of internal complaints processes,
known as 'special to type' processes. Provision to be made here
as to the relationship between those processes and the service
complaints system for the purposes of calculating time limits.
(2) If a matter is or has been capable of being pursued
as a claim under the Equality Act 2010([5])
a service complaint may be made about the matter at any time on
or before the end of the qualifying period for a claim under that
Act. The end of the qualifying period must be determined in accordance
with section 129 of that Act.
(3) A service complaint may be made on a date after
the end of the period in whichever of regulation 5(3)(b) and
paragraph (1) applies to the complaint, if in all the circumstances
it is just and equitable for the specified officer to permit this.
This paragraph does not apply to a complaint within paragraph
(2).
Ombudsman's review of admissibility
6.—(1) On receipt
of an application for a review of the specified officer's decision
that a service complaint is not admissible, the Ombudsman must
determine whether the service complaint is admissible and notify
both the specified officer and the complainant in writing of
his or her determination giving reasons for the determination.
(2) The Ombudsman must not consider an application
under paragraph (1) made more than four weeks beginning with the
day the complainant is notified of the specified officer's decision,
unless the Ombudsman considers it is just and equitable to allow
the complainant to apply outside that period.
(3) A decision by the Ombudsman in relation to admissibility
is binding on the complainant and the specified officer.
(4) Where under paragraph (1) the Ombudsman determines
that the service complaint is admissible, the specified officer
must refer the complaint to the Defence Council as soon as reasonably
practicable.
Application of these regulations where further
matters raised by way of complaint
7. If the complainant
raises an additional matter by way of complaint at any time after
the specified officer has made a decision on the admissibility
of a service complaint, these must be made, and dealt with, as
a fresh service complaint.
Decisions on a service complaint
8.—(1) Subject to
[any requirement by regulations made by the Secretary of State
under section 340E(1)(b),] on receipt of a referral of a service
complaint from the specified officer, the Defence Council must
decide as soon as reasonably practicable whether the complaint
is to be dealt with -
(a) by a person or panel of persons appointed
by the Council; or
(b) by the Council themselves.
(2) The person or panel of persons appointed to deal
with the service complaint or (in a paragraph (1)(b) case) the
Defence Council must as soon as is reasonably practicable -
(a) decide whether the complaint is well-founded;
and
(b) if the decision is that the complaint is
well-founded -
(i) decide what redress (if any), within the
authority of the person or persons on the panel or (in a paragraph
(1)(b) case) the Defence Council, would be appropriate; and
(ii) grant any such redress.
(3) The person or panel of persons appointed to deal
with the service complaint or (in a paragraph (1)(b) case) the
Defence Council must notify the complainant in writing of the
decisions made under paragraph (2), giving reasons for the decisions.
(4) If the decisions made under paragraph (2) are
made by a person or panel of persons appointed under paragraph
(1)(a), that person or panel of persons must inform the complainant
of the right of appeal under regulation 10(1).
(5) If the decisions made under paragraph (2) are
made by the Defence Council under paragraph (1)(b), the Defence
Council must inform the complainant of the right to apply to the
Ombudsman to investigate any allegation of maladministration in
connection with the handling of the service complaint.
Procedure for bringing an appeal
9.—(1) Where a decision
under regulation 9(2) is made, by a person or panel of persons
appointed under regulation 9(1)(a), the complainant has a right
to appeal to the Defence Council against that decision.
(2) An appeal under paragraph must be brought in
writing to the Defence Council.
(3) The appeal must state [requirement to give
reasons for the appeal? Further consideration being given to how
exactly appeals will be brought].
(4) In a case to which regulation 11(2) applies,
the complainant must state the reasons why the appeal was not
brought within the period specified in paragraph (5).
(5) Subject to regulation 11(1) and (2), an appeal
cannot be proceeded with unless it is brought within six weeks
beginning with the day on which the complainant received notification
under regulation 9(3) of the decision appealed against.
Decision whether to proceed with an appeal
10.—(1) On receipt
of an appeal under regulation 10(1), the Defence Council must
decide as soon as reasonably practicable whether the appeal can
be proceeded with.
(2) An appeal may be brought on a date after the
end of the period specified in regulation 10(5) if in all the
circumstances it is just and equitable for the Defence Council
to permit this.
(3) If the Defence Council decides that an appeal
cannot be proceeded with, they must inform the complainant in
writing, giving reasons for that decision and informing the complainant
of the right to apply for a review of that decision by the Ombudsman.
[further provision under consideration as to possible grounds
for refusal to allow an appeal to proceed - see regulation 10(3)
also].
Ombudsman's review of a decision not to proceed
with an appeal
11.—(1) On receipt
of an application for a review of the Defence Council's decision
under regulation 11(1) that an appeal cannot be proceeded with,
the Ombudsman must determine whether the appeal can be proceeded
with and notify both the Council and the complainant in writing
of his or her determination, giving reasons for the determination.
(2) The Ombudsman must not consider an application
under paragraph (1) made more than four weeks beginning with the
day the complainant is notified of the decision under regulation
11(1), unless the Ombudsman considers it is just and equitable
to allow the complainant to apply outside that period.
(3) A determination by the Ombudsman in relation
to an appeal is binding on the complainant and the Defence Council.
Determination of appeals
12.—(1) Where the
Defence Council, or following a review, the Ombudsman, decides
that the appeal can be proceeded with, subject to [any requirement
by regulations made by the Secretary of State under section 340E(1)(b)],
the Defence Council must decide, as soon as reasonably practicable,
whether the appeal is to be dealt with -
(a) by the person or panel of persons appointed
by the Council; or
(b) by the Council themselves.
(2) The person or panel of persons appointed to consider
the appeal, or as the case may be, the Defence Council must, as
soon as reasonably practicable-
(a) decide whether the complaint is well-founded;
and
(b) if the decision is that the complaint is
well-founded -
(i) decide what redress (if any), within the
authority of, as the case may be, the person, or the persons on
the panel, or (in a paragraph (1)(b) case) the Defence Council,
would be appropriate, and
(ii) grant any such redress.
(3) The person or panel of persons appointed to consider
the appeal, or as the case may be, the Defence Council, must notify
the complainant in writing of the decisions under paragraph (2),
giving reasons for the decisions and informing the complainant
of the complainant's right to apply to the Ombudsman to investigate
any allegation of maladministration in connection with the handling
of the service complaint.
Procedure with respect to decisions and determinations
13.—(1) For the
purposes of making a decision under regulation 9(2), or a determination
under regulation 13(2), the person or panel of persons, or (as
the case may be), the Defence Council, may request the complainant,
or such other person as they consider appropriate, to supply information
or produce documents.
(2) In respect of a request under paragraph (1),
the person or panel of persons, or (as the case may be), the Defence
Council may impose any such time limit for the supply of the information
or production of other documents, as they consider reasonable
in the circumstances.
(3) Should the information or documents requested
under paragraph (1) not be supplied or produced within the time
limit under paragraph (2), the person or panel of persons or (as
the case may be) the Defence Council may proceed to reach a decision
or determination based on the information or documents available.
Delegation of functions by the Defence Council
14.—(1) Subject
to paragraph (2), the Defence Council may delegate to any person,
to such extent and subject to such conditions as the Council consider
appropriate, any of the Council's functions under these Regulations.
(2) The Defence Council must not delegate its functions:
(a) in a case within regulation 9(1)(b), of making
a decision under regulation 9(2); or
(b) in a case within regulation 13(1)(b) of making
a decision under regulation 13(2).
[insert here]
on behalf of the Defence Council
( 1 ) 2006 c.52. Section 340B was inserted by section
2 of the Armed Forces (Service Complaints and Financial Assistance)
Act []. Back
( 2 )
1955 c. 18. [footnotes to be completed] Back
( 3 )
1955 c. 19. Back
( 4 )
1957 c. 53. Back
( 5 )
2010 c. 15 Back
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