Hansard

Eric Drake and I welcome the opportunity to speak to the committee today. We offered to do so because I thought that it would be helpful if we were able to explain the processes, and if we were able to get feedback from the members about other things that they think that we might want to do. I see this as the beginning of a continuing dialogue between my office and the committee and, indeed, other committees in the Scottish Parliament. We want to play a constructive role in contributing to the work of the Scottish Parliament because our brief covers a range of areas that reflect some of the committees' work. We have already given a presentation to the committee clerks. The head of clerking has also given a presentation to our staff, so there is a two-way understanding of our different roles.We also thought that this would be a good opportunity to tell the committee about some of the roadshow events that we completed in September and October. We visited all 15 health regions in Scotland to raise people's awareness of our role and, crucially, to discuss some of the imminent changes to the internal processes for dealing with complaints in the health sector and our role in that.We have quite a lot of slides to show you. Members have a copy of our presentation, which we intend to go through fairly quickly, but you will have the papers for future reference. We are happy to answer questions as we go through the briefing as well as at the end.First, I should introduce Eric Drake in a little more detail. He is one of the deputy ombudsmen. We cover several different areas of policy but Eric has particular experience of health, and of parliamentary procedures; he worked in the Millbank office of the ombudsman before becoming the manager of complaints for the Scottish end of that office in Edinburgh. He has also been on secondment to the Irish ombudsman's office so he has spent some time in Dublin. It is useful to have such a range of expertise. Eric is going to be my lovely assistant for this afternoon and he will press some of the buttons for the slide show so that we can divide the presentation between us.I will start with a brief introduction because the first question that we get asked whenever we do anything is, "What is an ombudsman?" There is a simple answer to that; the definition in "The Chambers Dictionary" is:"an official who is appointed to investigate complaints".Indeed, that is what my staff and I do with complaints about the delivery of public services in Scotland.The next slide says a little bit about the British and Irish Ombudsman Association. I know that the committee has previously discussed that organisation. The Scottish public services ombudsman is a member of the association, as are our counterparts in England, Wales, Northern Ireland and beyond. It allows ombudsmen to come together to discuss areas of policy and best practice. One of the first things that the office in Scotland did in the spring, just after we were appointed, was to give a presentation to the association's conference on Scotland's aspirations to develop a one-stop shop for handling complaints. The association very much looks to Scotland as leading the way in some matters. We contribute a lot to its discussions and, indeed, learn from it. We meet on various occasions and our staff are involved in subgroups in which we talk about complaint-handling processes and key principles. We have been able to feed into that discussion. One of the packs that we will leave for members is from our roadshow events and contains the key principles of good complaint handling that we drew up and are sharing with our colleagues in other parts of the United Kingdom and beyond.The first key principle and the foundation for what ombudsmen do is the independence of the ombudsman from those whom the ombudsman has the power to investigate. That is an important principle. Members of the public should be able to bring complaints to us knowing that we are an independent voice and have an independent way of looking at things.Obviously, we want effectiveness and to add value to the system. Fairness is another key principle. We must be seen to be fair to both sides. We are not on anyone's side. We will hear a complaint, but we will also ask the body that is complained about for its perspective. There is also our public accountability. We are concerned about considering ways in which we can be more accountable, and this evidence is part of that process.It is worth reminding colleagues and members that Scotland had ombudsmen before devolution. The UK was rather late in coming to the concept of having an ombudsman. In 1809, the Swedes invented the concept and had the first ombudsman, but the UK did not have an ombudsman until 1967. In Scotland, we had parliamentary and health service ombudsmen. There was the office to which I have referred in which Eric Drake worked. There was a main office down in London and an office in Scotland that dealt with complaints about the health service in Scotland, but mainly with complaints about the work of the Scottish Office at the time. One office had two functions. There was also a separate local government ombudsman to reflect the fact that Scotland has a separate local government system, and a housing association ombudsman. That was the pre-devolution position.It is clear that there were many pluses in that system, not the least of which was the high regard in which the ombudsmen and the work that they carried out were held. However, in the parliamentary debate preceding the Scottish Public Services Ombudsman Act 2002—in which many committee members would have been involved—concerns were expressed that there were things that Scotland wanted to do to create a new and modern complaints-handling process that was more open and accessible and simpler for the average member of the public to understand. Such debates informed the legislation that was passed.The new system that we have tried to develop is very much in tune with the Parliament's aspirations for running its own affairs. It is based on the ideas behind devolution and the key principles of power sharing, accountability, access and participation, and equal opportunities. Two consultation exercises were held on the kind of system that Scotland wanted. One was called "Modernising the Complaints System—Consultation on Public Sector Ombudsmen in Scotland" and the other was called "A Modern Complaints System—Consultation on Proposals for Public Sector Ombudsmen in Scotland", both of which very much informed the new legislation—the Scottish Public Services Ombudsman Act 2002. The aspiration was to create a one-stop shop to make things much simpler for members of the public who have a complaint. Having one door is much simpler. Members of the public would know which door to go through, even if there were a number of different aspects to their complaint. Long-term care for the elderly is a classic example. A person might have a complaint involving the local authority, the health service and a housing association. Previously, the complaint would have been handled by three different ombudsmen, but they can now be handled by one person in my office.We brought together under our jurisdiction the Scottish Executive and its agencies, the Scottish Parliamentary Corporate Body and all the work of local authorities, the national health service and housing associations. We also brought under our umbrella the enterprise bodies that previously had their own separate adjudicator system. The new jurisdiction brought in mental health complaints to the NHS.There have also been developments since we were set up two years ago. As I said in my introduction, major changes are proposed for health service complaints. There will be one step in the internal process. In the next few months the independent review panel will no longer exist and complaints will come straight to the ombudsman. I hope that that change will make the timescale shorter and simpler for members of the public. We have already budgeted for that and we are ready for it to happen.A big question mark surrounds further and higher education. A bill is currently going through Parliament and part of the legislation on further and higher education is that the ombudsman should also have jurisdiction in complaints about those sectors. Lots of change is on-going from when we were set up.We thought that we would highlight the main differences between the previous process and the current one, which is where Scotland has very much led the way.The first point is that in Scotland the legislation means that there is no MSP filter. Members of the public can come straight to our office. Previously, under different jurisdictions and in particular sectors, people had to go via an MP and latterly via an MSP. They do not have to do that now. Many MSPs and MPs are involved in some complaints and we do not discourage that, but a member of the public does not have to involve them if they do not want to do so.The next point is about accessibility, personal and oral complaints and so on. The legislation is innovative because it tries to reduce the barriers that face people who want to make a complaint. In the past complaints had to be made in writing. It was acknowledged that some people would find that difficult if English were not their first language or if they did not find it easy to articulate their ideas on paper. People can make complaints to us in person and via e-mail. We have not got as far as text messaging yet, but you never know—we might get to that. The idea is to try to open the process up.The consideration of service failure across all sectors is a very important aspect of our new powers. Previously that power applied only in the health sector. I think that it was Iain Smith MSP who raised the question in the Scottish Parliament why, if the power applies to health, it does not apply elsewhere. The legislation now allows us to look not only at maladministration, but at service failure across the different sectors under our jurisdiction.The next point refers to a complaint by listed authority. That should more accurately be referred to as a request by a listed authority. Although we mainly take complaints from members of the public or their representatives we can also take a request from a listed authority that is under our jurisdiction. If the listed authority has been dealing with a complaint from a member of the public and it feels that it has met the complaint, responded and done everything that it can, but the member of the public remains dissatisfied, it might want to ask us to look at the complaint in order that an independent eye can be cast over it. We are beginning to see a number of listed authorities approach us to ask us to take those issues.Informal resolution is another important aspect of the process. If a complaint can be resolved as early in the process as possible that is the best way of resolving it. The matter should be resolved with the body involved at the point at which the problem arises and if that is not the case and it comes to us, we will look at ways to resolve the problem rather than have a lengthy investigation that is stressful for the complainant.Something else that we very much welcome being asked to do—we would welcome the committee's view on the matter—is to increase public awareness about the role of the ombudsman. We receive various letters that are addressed to all sorts of interesting people. Eric Drake recently got one that was addressed to "the deputy omnibus". We might find that amusing, but nonetheless there is an important issue if people do not understand what we do. We have a big role to play in addressing that. The other aspect of the matter is that we give advice to bodies under our jurisdiction on best practice and guidance. That is part of an outreach strategy, which we are happy to tell the committee more about as we go on.We are about the promotion of good administrative practices. An important point is that we can report to Parliament and we do so. We are required to do that if we carry out an investigation and if an injustice has not been remedied after we have recommended in our report to Parliament that it should be. We also have the power to lay a special report. We are often asked about our enforcement powers: that is an indirect way of doing that.It is important to remember that there are many similarities with the previous process. As I acknowledged at the beginning, there are good aspects to what happened previously and we should not leave them aside.The first clear point is that our role is to be independent. The second point is that we look at maladministration—poor administration, simply put—where it has caused an injustice to the complainant. We were asked to come up with a new definition of maladministration because it is one of those words that is tricky for people to understand exactly. Our stress will be on laying down principles of good administration and asking people to ask themselves whether they have met those principles. Thirdly, we do not exist to challenge proper decision making. Bodies under our jurisdiction have decision-making processes and we cannot overturn a decision. That can disappoint members of the public who often come to us wanting a decision overturned. We cannot do that if the decision has been properly made, but we can look at the process that leads to the making of that decision.Fourthly, we are the last resort in more senses than one. We are required to ask people to pursue and exhaust the complaint-handling process of the body they are complaining about before they come to us. We should be there at the end of such a process to try to settle it. We have an important power to require evidence and, last but not least, the work that we do is done in confidence—we protect the confidence of the parties involved. When we lay a report before the Parliament, the names of the individual complainants are not published, but the name of the body that is complained about is.We will have a handover now and Eric Drake will speak briefly about what we can consider.