The November 2104 News Letter is published below.
It can also be viewed or downloaded in pdf format: please click here.
Accountability Scotland Newsletter
7th November 2014
It is hard to get the media interested in our concerns, so it was heartening to see our member Dr Jane Hamilton’s case being covered in two articles in the Sunday Times of 26/10/14 (one, “NHS blew £1m on row” on the front page and the other “Call to protect Scottish NHS whistleblowers”). There was also an article about her in the Herald of 27/10/14.
As for getting MSPs interested in our concerns, that is another uphill task. It is proving hard to persuade those that matter that there are major general problems with administrative justice in Scotland (see Appendix A) and that, more specifically, we lack an adequate and effective SPSO. According to available statistics on satisfaction rates, our ombudsman is the worst in the world. We need to persuade parliament that his performance need to be independently investigated. We are trying! Jim Martin will be quizzed by the Local Government and Regeneration Committee on 7th January 2015 and invites questions to be put to him (see Appendix D below). Our Secretary is willing to coordinate questions sent to him. Note that the LG&R committee will not consider specific cases.
Richard Townsend-Rose’s new website , www.unaccountablescotland.org.uk, is gradually building up a compendium of case histories, but more are needed. Please contribute if appropriate, but note that the accounts must be clear and concise.
Accountability Scotland continues to support individual members with their problems, but our ability to do this is of course limited.
We have two petitions to report on, PE1449, just closed, and PE1538. Whatever the outcomes of these petitions, one may hope that some benefit comes from displaying them to public and media on the parliamentary website. One unrelated petition (on the charitable status of private schools) made it to the six o’clock BBC news!
The first, PE1449 (Maintenance of a Scottish Council for Administrative Justice) called “on the Scottish Parliament to urge the Scottish Government to preserve an independent Scottish Administrative Justice Council when the UK AJTC system is abolished, ensuring the new body has a critical user-interface to enable base-roots input from the public and that it has complete independence from political or civil service influence.”
The petition can be viewed on the parliamentary website. What is not there is our more recent submission backing up the petition. This is reproduced below as Appendix A below.
On 4th November the Justice Committee considered this petition. To quote them, “The Committee agreed to close the petition under Rule 15.7 on the basis that the Chair of the Scottish Tribunals and Administrative Justice Advisory Committee has given reassurances that the end user is well represented on that Committee. The Committee therefore considers that it has taken the petition as far as it can. It has, however, agreed to draw the Scottish Government’s and the Advisory Committee’s attention to [our] submission.”.
To see how well the end user (us and the public) are represented on the committee, view the membership of STAJAC on the following link:
http://www.adminjusticescotland.com/ - or see Appendix B below.
Our next petition (PE1538, ‘Transparency in SPSO investigations’) is scheduled to be considered on 25th November (the proceedings being televised as usual on the parliamentary website). This calls “on the Scottish Parliament to urge the Scottish Government to amend the Scottish Public Services Ombudsman Act (2002) to ensure that complainants are shown all correspondence between SPSO and the bodies complained about before the investigation is concluded (including emails) and that they are also made aware of the content of any verbal communications”. For details see Appendix C.
PE1449: submission of Accountability Scotland (September 2014)
Scotland’s administrative justice system needs to be properly monitored and reviewed on a permanent basis in respect of both reserved and devolved matters. The Advisory Committee (STAJAC) is a useful interim measure, but it is poorly funded, is not clearly independent of government and has no provision for direct input from members of the public that have actually suffered administrative injustice. Sound administrative justice is important to us all individually for its influence on decision making, governance and the whole relationship between citizens and state.
Much was made of the delivery of social justice in the referendum campaigns. Social justice can only be delivered through effective administrative justice. We have not so far seen much evidence of effective administrative justice in Scotland. This needs exhaustive research and subsequent reform.
All this is surely accepted as axiomatic, but it may be useful for us to indicate some specific problems that a new committee should address.
There needs to be much more transparency in the functioning of public bodies. Complaint handlers should be unconnected with the individuals or bodies complained about. Indeed, there can be no confidence in investigations of an authority by its own staff; i.e. there must be structural independence. (Recall the Kevin Ruddy case in this connection in which police complaints handling breached the European Convention on Human Rights through lack of structural independence – because the investigating officer was of the same force.)
There should be no gagging orders, no confidentiality agreements and no victimization of whistle blowers. Instead, it should be obligatory for employees to report faults, as in the aircraft industry – a duty of candour for all public employees.
Vital to administrative justice is the SPSO. However, the ombudsman can only investigate individual acts of maladministration and, although he has instituted a procedure for complaints handling by bodies under his jurisdiction, it is not in his remit to oversee the whole of the administrative justice landscape nor can he consider the complaints of whistle blowers. It should be an urgent task of a new justice committee to consider the adequacy and effectiveness of SPSO investigations and subsequent outcomes to establish why the SPSO has achieved satisfaction rates no better than 50% (as shown by the Craigforth surveys). These compare poorly with satisfaction rates of other ombudsmen worldwide, e.g. in Australia, New Zealand and, most strikingly Gibraltar where satisfaction is very close to 100%. Part of the problem seems to be inherent in the Scottish Public Services Ombudsman Act 2002, or at least in the way it is interpreted; the proposed committee should look into this. (We especially have in mind that complainants cannot see and check the correctness correspondence between SPSO and the body complained about.) A committee with statutory powers of investigation and reporting is needed to establish through statistics the present and future performance of the SPSO.
Most of the notable cases of administrative injustice to have been given media attention have been English (such as Mid-Staffordshire and the CQC), but we cannot assume that Scotland is better. Newspapers are mostly interested in big and simple stories, but one has read of Scottish problems relating to HM Inspectorate of Education and the NHS and to the scandal of Edinburgh City Council. So Scotland cannot be complacent; we do need a body independent of government and adequately funded to oversee administrative justice.
The views we express here accord with STAJAC’s document “Workplan May 2014 – December 2015”, but here we also call attention here to some specific issues for the proposed committee to address. We regard our “Submission provided by the petitioners on 23 May 2013” to be still valid.
STAJAC has been created to provide external, expert scrutiny of the devolved administrative justice and tribunals system in Scotland. The Committee has been established for a period of two years.
The new Committee Chair, Marieke Dwarshuis, selected eight initial members with a wide range of experience in areas such as issuing ad-vice, decision making, academia and representing users. The initial members of the Committee were:
Marieke Dwarshuis, Chair ; Professor Tom Mullen; Shaben Begum; Paul McFadden; Lauren Wood; Tom Drysdale, John Sturrock; Douglas Proudfoot; and Sarah O’Neill. John Sturrock has since left the committee.
MARIEKE DWARSHUIS Marieke’s career in Scotland spans over 20 years in the public and voluntary sector in a wide range of roles including Director of Consumer Focus Scotland and positions at the Scottish Government, Office of the Scottish Charity Regulator, Citizens Advice Scotland and Shelter Scotland.
PROFESSOR TOM MULLEN
Tom Mullen is Professor of Law at the University of Glasgow and a non-practising solicitor. His research and teaching interests include constitutional law, administrative law and he has written and edited numerous books on these subjects.
Sarah is a non-practising solicitor, with experience in the private, public and voluntary sectors. She is currently an independent consultant specialising in legal and consumer policy, and has many years’ experience of working on civil and administrative justice issues.
Shaben is the Director of the Scottish Independent Advocacy Alliance (SIAA) with an advocacy background stretching back many years. Shaben has helped the SIAA develop a strong national voice for independent advocacy organisations, helping to influence services and legislation. Shaben received an MBE for services to health care in 2011.
Paul is a member of the Scottish Public Services Ombudsman (SPSO) Senior Management Team and heads up its Complaints Standards Authority. Paul also oversaw the transfer of prisons and water complaints to the Ombudsman’s office and helped establish the Police Complaints Commissioner for Scotland.
Lauren is Access to Justice Policy Officer at Citizens Advice Scotland. She is responsible for influencing decision makers and opinion formers in Government, the public and private sectors and the media. Lauren holds a Masters Degree in Law and Governance.
Douglas is a Chartered Accountant with 21 years’ experience in Local Government Finance. He has also worked for COSLA and on the Scottish Welfare Fund implementation. Douglas is currently a Policy Manager with East Lothian Council.
Tom Drysdale was in private practice as a solicitor until 2004 and was a Director of Edinburgh Solicitors’ Property Centre. He was a part time first tier tribunal judge in social security appeals until 2013 and also worked with the Registers of Scotland.
APPENDIX C Petition PE1538
(“SPSO” is used here for both the ombudsman and his staff, as appropriate.)
A document written by the ombudsman Jim Martin himself together with Richard Thomas and Richard Kirkham ('External Evaluation of the Local Government
Ombudsman in England', April 2013) includes the following statement:
Informing both parties to an ombudsman investigation of the respective arguments ensures that both sides have had the opportunity to understand the viewpoint of the other. More importantly, this measure allows parties to rebut the arguments of the other side.
This statement summarizes quite well our views on this issue, except that evidence should be revealed also, as well as arguments.
Despite the above quotation, the SPSO does not accept the above basic principles in regard to Scotland and will not allow complainants to see the correspondence between SPSO and BUJs, at least until after judgement has been passed.
In support of this position the SPSO cites the Scottish Public Services Ombudsman Act 2002, specifically item 12 (1). Here is the relevant part of the Act:
12 Investigation procedure
(1) An investigation under section 2 must be conducted in private.
However, it is far from clear that “in private” means that information should not be shared with complainants. Indeed we do not believe that the legislators could have intended this. There is therefore a simple solution to the problem—a brief amendment to the Act. This would be to the effect that complainants should be allowed to see all exchanges between SPSO and the relevant BUJs (redacted as necessary).
The SPSO’s position on this issue is not in fact as straightforward as has so far been stated; other statements made by the SPSO are inconsistent and confusing. Details are given below, but first we say why we think this issue is important.
The need for transparency in SPSO investigations
Justice, and adequate and effective investigation, require that the SPSO investigator has the true and full facts of the case and, for the satisfaction of complainants, they must believe this to be so.
A complainant needs to know whether his or her case has been correctly presented by the SPSO and whether the responses of the BUJ are complete and honest. Given the imperfections of human nature, BUJs must often be biased in what they say. Moreover, the individuals handling complaints within the BUJ (perhaps in more senior positions) may not be the people accused of maladministration. We do in any case know from experience that the SPSO can inadvertently misrepresent details of the accusation and we also know from experience that BUJs can provide false evidence (whether this comes from the Chief Executive presenting second-hand evidence or from lower levels in the organization).
It is for good reasons that secrecy would not be tolerated in a law court.
The confusing picture presented by the SPSO
The SPSO does not consistently cite the SPSO Act as above and sometimes even contradicts their interpretation of it. We illustrate with quotations.
- (a) Jim Martin has given a completely different reason for not revealing correspondence between his investigators and BUJs. Thus the following is a written response to a question put to him by the Local Government and Regeneration Committee, when quizzing him on his annual reports.
- Question – Why is the SPSO reluctant to reveal to complainants the correspondence between investigators and BUJs?
- Response – When we receive a request for information, it is our current practice to release everything we can that has not already been shared with the complainant as part of the investigation process. Sometimes, we hold information which we cannot release.
- The response may look like an answer, albeit only partial. Here there is no suggestion of any legal restriction on revealing correspondence. There is no hint as to what kind of information cannot be released.
- (b) Part of an email to the Chief Executive, Glasgow City Council conflicts with the SPSO’s interpretation of “in private” (11 September 2012. SPSO reference: 201104526). This relates to a complaint against the Council.
- “Note that information provided to the SPSO will normally be shared with the complainant during the course of our consideration of the complaint. It may also be released following a subject access request under the Data Protection Act 1998. Therefore, please advise me if you have any objections to the release of the information you provide. Yours sincerely, xxxxxxxxxxx, Complaints Reviewer”
- This contradicts the assertion that correspondence cannot be shared with a complainant. Indeed, the information alluded to was not released following the subject’s access request under the Data Protection Act 1998, despite his correspondence with the Information Commissioner and SPSO.
- (c) The following is a footnote to SPSO emails:
- Investigations by the Scottish Public Services Ombudsman are to be carried out in private, in terms of the Scottish Public Services Ombudsman Act 2002. Accordingly, this correspondence must not be made publicly available. This does not affect the rights of recipients to seek legal advice in relation to this complaint. Where appropriate, recipients are also reminded of their obligations under the Data Protection Act 1998 in relation to the processing of personal and sensitive personal data.
- This suggests that “in private” refers to availability of information to the public generally and not availability to the complainant. It would be unreasonable to classify complainants as ‘the public’ in this context (as opposed to ‘particular members of the public’).
- (d) The SPSO wrote the following to a complainant wishing to see correspondence:
- Section 19(1) of the SPSOA states that ‘Information obtained by the Ombudsman or any of the Ombudsman’s advisers in connection with any matter in respect of which a complaint or a request has been made must not be disclosed except for any of the purposes specified in subsection (2) or as permitted by subsection (3)’.
- Amongst those purposes are “any consideration of the complaint or request (including any statement under section 11) and any investigation of the matter (including any report of such an investigation),”
- The appeal to Section 19(1) thus appears to be spurious.
- (e) Professor Brown, as former SPSO, was willing to pass correspondence between her office and BUJs to complainants. The present SPSO has been asked “Was this improper, or has there been a change in the legislation?” The SPSO replied that there has been no change.
- Why transparency in this regard should benefit the SPSO and why the SPSO should welcome clarification of this issue.
- 1. Complainant surveys in past years (by Craigforth) revealed that much of the considerable complainant dissatisfaction with the SPSO was due to a belief that the SPSO was not impartial. The SPSO should surely welcome improvements in public trust.
- 2. In response to a request to see correspondence between SPSO and a particular BUJ, the SPSO first took this to be treatable as an FOI request. Then, realizing that this would make the information available to the general public (which, incidentally, the complainant would not have minded) related it to Data Protection. It was not explained why the complainant should not be allowed to see his own personal ‘data’, supplied by himself. The SPSO should surely welcome clarification and the resulting saving of time.
Local Government and Regeneration Committee – Calls for Questions for the Scottish Public Services Ombudsman (SPSO)
On Wednesday 7th January 2015, the Scottish Public Services Ombudsman (“SPSO”) and members of his senior staff will appear before the Local Government and Regeneration Committee. The session, in previous years has discussed the SPSOs performance over the last period and looked forward to the SPSOs plans for coming years.
The SPSO is the final stage for complaints about councils, the National Health Service, housing associations, colleges and universities, prisons, most water and sewerage providers, the Scottish Government and its agencies and departments and most Scottish authorities. The Ombudsman looks into complaints where a member of the public claims to have suffered injustice or hardship, as a result of maladministration or service failure.
The SPSO website states they are the 'last resort', and look at complaints which have been through the formal complaints procedure of the organisation concerned. The vision of the SPSO is
“Our vision is of enhanced public confidence in high quality, continually improving public services in Scotland which consistently meet the highest standards of public administration. We aim to bring this about by providing a trusted, effective and efficient complaint handling service which remedies injustice for individuals resulting from maladministration or service failure.”
The SPSO is required by law to lay his annual report on the work of his office before the Parliament each year. Our Committee’s role is to scrutinise the SPSO function by consideration of the SPSO’s annual report and related strategic documents.
In its evidence sessions with the Ombudsman, the Committee cannot ask questions relating to individual complaints that are, or have been, considered by the SPSO. Questions must relate to general matters (including issues covered in the SPSO annual report, such as the strategic approach and operational function of the SPSO; and the impact it has upon the overall effectiveness of public services complaints processes and public service provision).
Please note that only questions submitted via the Committee mailbox and within the word limit will be considered, and it will be for Members to determine which questions they separately put to the SPSO for written answer.
If you have any difficulty emailing your question to the email address provided, please contact the Local Government and Regeneration Committee’s assistant, Paul Nicholson, on 0131 348 6040.
The SPSO Annual Report supports the Parliaments consideration of the performance of the SPSO and the SPSO Strategic Plan sets out the forward looking plans of the SPSO. You may find it helpful to read these documents in your considerations as they form the focus of the Committee’s scrutiny, and thus questions should link to the detail contained in them.