The Crerar Review: the report of the independent review of regulation, audit, inspection and complaints handling of public services in Scotland

11 COMPLAINTS HANDLING

11.1 The Review was asked to include complaints handling as a strand of external scrutiny, defined as being: "the investigation of complaints about public services carried out by a range of commissioners, ombudsmen and other public bodies with specific roles and responsibilities." A summary of the work done on complaints handling, our findings and analysis of stakeholder views is attached at Annex O. We took evidence from the SPSO, complaints handling scrutiny bodies, service providers, the Scottish Government, the Scottish Consumer Council ( SCC) and from the independent study "Scrutiny and the Public". Most contributors to the Review, especially service users, service providers and the Scottish Government, agreed that complaints handling should be an integral part of a system of external scrutiny for public service delivery. However, some key contributors, such as the Auditor General and the Scottish Public Services Ombudsman ( SPSO) preferred to describe complaints handling as an activity that played an important role aligned to external scrutiny.

11.2 As we examined the present complaints handling arrangements, it became clear our recommendations for improvement would have to be extended to cover the systems used by service providers. This and the uncertainty over whether complaints handling constituted 'external scrutiny', led us to conclude that our assessment on current arrangements and our recommendations for improvements for complaints handling needed to be dealt with separately in this report.

11.3 This chapter of the report considers the problems with the current systems, as reported to us and then makes recommendations to address them.

Present complaints handling systems

11.4 We found that the current complaints arrangements are overly complex for service users and the public:

• There are significant variations in how complaints are dealt with between different public service sectors, within sectors and within single organisations;
• The way complaint outcomes are used and how they are reported, varies significantly from sector to sector;
• There are more than 20 external scrutiny bodies which handle complaints.

11.5 It is difficult for a complainant to navigate the present regime because of the number of complaints bodies, because providers have different ways of dealing with complaints and because it is not always clear which body should be responsible for dealing with the issue. The SPSO summarised the current system complexity in her annual report from 2004-05:

"In handling complaints, particularly those that involve different agencies, we are struck by the diversity of complaints procedures across and within the public services in Scotland. Unfortunately in this case, diversity does not add value but rather adds to the confusion that exists for people wishing to bring a complaint when things have gone wrong. This confusion is widely recognised…"

11.6 A conclusion drawn by the Parliament's Health Committee, when it considered the Care Inquiry in 2006, ¹¹ was that there are too many avenues for complaints about health and social care and that, if anything, the system needs to be rationalised with a clarification of the procedure for those complaining.

11.7 In December 2006, the SCC published a report on "Complaints in Education ¹² " which included the following finding: "The complaints procedure for education is complex, involving a number of different internal stages and four separate, statutory sources of external review…" In its "Literature Review on the Consumer Approach to Scrutiny" the SCC also highlights barriers that may prevent potential complainants from voicing their grievances, including: complaints procedures being complex, slow moving, expensive, time-consuming and weakly-directed to meeting consumers' needs or expectations.

11.8 Complaints are usually made to the service provider, but in some sectors the complaint can be made direct to a scrutiny body, or to a separate complaints handling body (such as SPSO). Some scrutiny bodies only handle complaints ( SPSO), while others are involved in regulation or inspection as well (such as the Care Commission). Some scrutiny bodies that inspect or regulate do not handle external complaints (such as Communities Scotland). The SCC cites this inconsistency as adding an unnecessary level of complexity to the complaints handling framework.

11.9 Information and outcomes from complaints are also not consistently used. There are examples of good practice in terms of making outcome information widely available - such as the distribution scheme used by the SPSO to regularly update stakeholders on her findings. However, there is little evidence that this is happening more widely. The way that HMIE makes use of complaints as part of its scrutiny process is another example of good practice. In school inspections, child protection inspections and college reviews, evidence on complaints handling is now integral to information requested by HMIE in advance of inspection. HMIE also uses complaints information in the inspection of education authorities: inspectors consider the complaints procedures in each council, discuss the nature and volume of complaints with officers and, in interviews with parents' representatives, ask about how satisfied parents are about the complaints procedures. However, as this approach is not adopted by all external scrutiny bodies, there is a lack of consistency here too.

11.10 The current separate complaints systems are not designed to fit together in a way that might make the overall process simpler to understand for complainants. A practical example of the complexity and the difficulty this poses to service users was provided in evidence from the SPSO. This is represented graphically in the following diagram (diagram 7) which shows that an individual wishing to make a complaint about the provision of care for her elderly mother could have been investigated through 5 separate complaints processes: NHS, Care Commission, the individual care home, professional bodies (such as the General Medical Council or the Nursing medical Council) or through the Procurator Fiscal.

Diagram 7: Example of complaints complexity and overlap

Adapted from Scottish Public Services Ombudsman paper on the Place of Complaints Handling (2007)

The future for complaints handling

11.11 Service users and the public would benefit from a less complex, faster and more easily accessed system. Service providers would also benefit from a simplified system and from a more consistent way of using complaint outcomes to provide assurance and drive improvement. To provide public confidence in complaints handling and to make best use of complaints outcomes, we are recommending a rationalised and simplified standard approach to complaints handling for Scotland's public services. This should be built on the improvements which have been made recently - the rationalisation of ombudsman functions, the introduction of the Customer First initiative within local authorities and the development of an improved NHS complaints system. What we are recommending is a further development of these improvements, rather than a complete system re-design. However, there are some areas of specific concern, referred to earlier in this chapter, which must be addressed - particularly the inconsistencies identified by the SCC in the way that complaints in the education sector are addressed. Barriers that prevent information sharing and co-operation in areas which are subject to specific legislation, such as in education and in social work, need to be removed. The recommendations we are making aim to remove these barriers.

11.12 The recommendations not only simplify matters for members of the public but would assist the accountability process when things go wrong with the delivery of services either separately or collectively. To speed up the process of handling a complaint, we are recommending that the SPSO would no longer normally be asked to consider appeals where these have already been investigated and concluded by providers or scrutiny bodies. Some of the present SPSO functions would be devolved to service providers and scrutiny organisations with a view to setting up robust systems where complaints can be handled internally and fairly, as locally and quickly as possible.

Recommendations for complaints handling

11.13 The recommendations below, aim to:

• Reduce the complexity of the current complaints handling systems;
• Introduce a single system led by a single agency with clear remit to allocate responsibility for dealing with complaints;
• Introduce improvements for the service user -
  • making complaining more straightforward;
  • reducing the time taken to deal with complaints;
  • dealing with complaints more locally; and
  • standardising how complaints outcomes are reported;
• Improve consistency and co-ordination across sectors, removing potential for duplication and overlap;
• Centralise the system-design expertise from various sectors; and
• Allow the lessons learned from each case to be applied more easily across all public services.

11.14 To deliver an improved approach to complaints handling across public services overseen by Ministers and the Parliament in Scotland, we recommend that:

(a) A standardised complaints handling system should be introduced for scrutiny organisations and service providers in all public services (R41); and

(b) The Scottish Public Services Ombudsman should oversee all public service complaints handling processes. (R42)

Standardised System

11.15 The most significant change to the present complaints handling systems we are recommending is the move to a standardised system (standard methodology and process) across all sectors. We recommend that complaints and appeals should be dealt with:

• Simply - by reducing complexity and designing systems which are easy to access and use;
• Consistently across all sectors and by all providers;
• Quickly and within an agreed and transparent timeframe; and
• Locally, where practical, to ensure the least inconvenience for those involved.

11.16 In order to meet these aims, the standardised system would rely on the following principles:

(a) Responsibility for dealing with complaints should rest with service providers. Where complainants are not satisfied with the outcome, an appeal should then be made to a more senior level within the provider organisation. Where that is not possible, an appeal should be made to the relevant scrutiny organisation;

(b) Providers and scrutiny organisations should deal with complaints as locally as possible;

(c) A common point of entry, offering guidance to complainants who are unsure where responsibility lies and assigning responsibility to providers and scrutiny bodies for leading on any specific case, should be introduced;

(d) Where more than one organisation could respond to a complaint, or where there is no obvious lead organisation to respond to a complaint, responsibility should be allocated at a complainant's first point of contact;

(e) A common set of principles for complaints handling should be agreed for all complaints systems;

(f) All service providers should have a published complaints procedure with the appropriate form for service users to complete;

(g) A commitment to quick resolution and transparent time framing should be agreed for all complaints systems; and

(h) A standard approach to reporting outcomes from complaints and appeals should be introduced, which should include details of service improvements likely to be made as a;result, or details of issues that may require further investigation.

SPSO Role

11.17 To deliver a standardised system for complaints handling, as set out above, we are also recommending that a single agency should be responsible for developing and overseeing it. The SPSO is the natural candidate for this role. Her statutory independence and her experience and expertise in investigating service failure and maladministration give her the necessary credibility. We are recommending the remit of the SPSO should be expanded to take on additional responsibilities and duties, but the specific role of investigating front-line service failure should be devolved to service providers and scrutiny bodies, to simplify the present arrangements.

11.18 We recommend that the SPSO should:

(a) Be given responsibility for developing and overseeing the standardised complaints handling system described above and for delivering on each of the principles above;

(b) Be given responsibility for directing providers or scrutiny bodies to lead on individual complaints where more than one organisation could respond to a complaint, or where there is no obvious lead organisation to respond to a complaint;

(c) Be given responsibility for setting a benchmark for how long a complaint should take to resolve in each sector, reflecting the sectoral differences and anomalies. The statutory duty imposed on the Standards Commission, to conclude investigations within 3 months may be a useful starting point, but the presumption should be that simpler cases should take less time. All parties should then be kept up to date with progress towards a timely conclusion;

(d) Be given responsibility for co-ordinating the way outputs and outcomes from complaints are reported and used to inform service improvement;

(e) Be given responsibility for rationalising any overlap or duplication within the current arrangements, where more than 20 separate organisations handle complaints of some sort about providers;

(f) Be given responsibility for ensuring that complaint and appeal handling processes are sufficiently robust to meet legal challenges on the grounds of independence, fairness or otherwise;

(g) No longer have responsibility for investigating and making final decisions on cases, as these will now be resolved by providers or by relevant scrutiny bodies; but -

(h) Retain responsibility to investigate complaints and appeals where providers or scrutiny organisations cannot demonstrate sufficient robustness;

(i) Retain responsibility for investigating complaints about the failure of providers or scrutiny organisations to adhere to complaints handling processes.

Implications

11.19 In making these recommendations, we recognise the need to consider current legislation and the implications this will have on delivering change. We also recognise that setting up a new complaints handling system - even one built on the existing arrangements - will have costs, but we have not been able to quantify or estimate what these might be. In the longer term, these costs should be balanced by savings from future rationalisation of the complaints handling systems.

SPSO

11.20 We are recommending that the SPSO is given a wider remit, in terms of designing systems which will make it easier to make complaints and which will ensure that outcomes are more closely linked to service improvements. We are also recommending that there would normally be no right of appeal to the SPSO in relation to the merits of a case which have been dealt with by a public service provider or relevant scrutiny body. These recommendations would mean that the duties and powers of the SPSO may need to be extended and the statutory right to appeal to the SPSO may need to be removed in certain cases.

11.21 As part of an extended role the SPSO would identify relevant appeal bodies by for each sector, and identify sectors in which there is currently no obvious appeal body.

11.22 We recognise the presentational challenge associated with altering the roles and responsibilities of the SPSO, but we believe the adoption of the common approach to complaints handling in the way we are suggesting would provide at least as much protection for the public and for users, while providing further benefits and improvements through simplification and rationalisation.

Service Providers

11.23 Service providers will now have to ensure their complaints handling processes are aligned with the new standardised system and must be ready to respond to direction from the SPSO on which complaints each provider should deal with. Where possible, providers will have to take advice from the SPSO on how to make their systems for dealing with appeals sufficiently robust as to stand up to legal challenge. Providers must also be prepared to learn lessons from outcomes of complaints - to themselves and also from complaints raised with other similar providers.

Complaints handling scrutiny bodies

11.24 Scrutiny bodies which handle complaints about service providers, or which handle appeals on the decisions made by providers, must also ensure that their complaints processes are aligned with the new standard system. Advice from the SPSO should be sought on how to establish robust processes. In the longer term, it is likely that the reduction in the overall number of external scrutiny bodies, referred to elsewhere in the report, will be reflected in the complaints handling sector. Our proposals could result in a reduction in the number of external scrutiny bodies dealing with complaints. Ultimately, we could see a situation where one body handles all public service complaints in Scotland.