From Accountability Scotland to the Local Government and Regeneration Committee regarding the SPSO

The  Committee has asked Mr. Jim Martin probing questions in relation to the SPSO’s Annual Report – both at the meeting of 14 January 2015 and subsequently. We too have asked questions of the SPSO. His responses suggest  that, on some issues, he is not eager to reveal the truth and so treats Parliament with contempt.
For this and other reasons we support the recommendation of the Public Petitions Committee that the SPSO be independently investigated.
The recent revelation of major job dissatisfaction amongst SPSO staff (item 4 below) provides another reason.

Here are some specific comments from Accountability Scotland.

1)  Mr. Martin has stated that
"All customers - complainants and organisations – can request a review if they are unhappy with a decision that is not made personally by me but is delegated to one of our complaints reviewers." (See LGR Agenda for 7 January.)
There is no mention of this arrogant-seeming distinction on the SPSO website between himself and delegated investigators. Moreover, a Senior Personal Assistant to the Ombudsman has shown us legal documentation (signed by Mr. Martin) establishing clearly that there is no such distinction in this context
Therefore Mr. Martin has misinformed the LGR Committee.
We asked the SPSO for further information about this, but they would not provide it (see Appendix below).
All customers can indeed ask for a review, but, as you know, requests are not necessarily granted.

2)   In his letter of 19/2/2015 Mr. Martin writes about the review process.
His account is hard to understand. (Incidentally there is a problem with the word “review” that does not help. Thus the review process is not carried out by Complaints Reviewers, i.e. the complaints handlers who carry out the primary investigations.)
The two processes involved, i.e. applying the criteria and then reviewing, seem not to be clearly separated. As Mr. Martin said, the decision is tested against the criteria within the process.
In his second paragraph Mr. Martin wrote “The criteria are not used as a barrier to prevent a case entering the process. etc”.  But they do actually constitute a barrier and things do not always work the way he says they do. Indeed, the LGR Committee has evidence for this. The criteria are very restrictive and the SPSO literature is explicit that they are applied firmly. Therefore most people will be prevented from even asking for a review unless they have the new evidence that is required. People will not ask for a review on the grounds that their complaint has been misunderstood—even though Mr Martin says this would be accepted—because the website says that it would not be accepted.

3)   In Annexe A to his letter of 30/1/15 to Kevin Stewart MSP, Mr. Martin wrote the following:
“3. Email from a member of the public
We have been asked to comment on an email received from a member of the public in response to our comments to the Committee about reviews.
I am happy to restate that the review process is open to anyone when a delegated decision has been made. The criteria used focus the review process on testing and ensuring that the decisions reached are sound. I do not consider that having criteria in place to allow me to ensure that I can demonstrate the assessment of those reviews is consistent and fair to all and also ensuring everyone is aware of that criteria so that they understand in advance what is likely to be most successful is denying anyone the right to request a review. The criteria refers to two critical points which, if wrong, would mean the decision that had been made was unsound. I do not consider it is wrong to focus the process on those or to let people know that I do so.”
This is barely comprehensible and conveys nothing helpful. A complainant receiving a ruling written like that would hardly be satisfied.

4)  When asked on 7 January, Mr. Martin said the SPSO staff survey results were published on  29 August 2014 (http://www.spso.org.uk/news-and-media/ombudsman-publishes-spso-staff-surveyresults).
The Annual Report says:
“We also carried out a staff survey at the end of 2013/14. The results of both the survey and the findings were generally very positive, indicating high levels of job satisfaction, engagement and commitment from SPSO staff. In the staff survey in particular, staff indicated a strong sense of achievement and personal accomplishment and felt supported by the learning and development programmes and robust performance management systems.”
The survey results reported in May 2014 do not support this rosy picture. The statistics of Appendix 2 of the survey report reveal major job dissatisfaction. Averaged over the 44 survey questions, 24% of the responses indicated dissatisfaction.
With that level of job dissatisfaction, can optimum performance be expected of the staff?

5)  Question 23 put to Mr. Martin asked:
The SPSO’s “Note of the Customer Sounding Board held on 19 March 2014” includes no conclusions or comments on the performance or methods of the SPSO. What, if anything. was  learnt from the meeting about these?
Mr. Martin replied that
The note reflects what was dealt with on that day. The first sounding Board in December 2013 began with an open question from the Ombudsman about how we were regarded and the minute (available here: http://www.spso.org.uk/customer-sounding-board) records the specific responses and questions about SPSO that were made in December.
This response evades the question, as most of it relates to 2013 and not to 2014. The ‘Note’ for 19 March 2014 records no such conclusions or comments. We have been told by someone present that there was no sounding of participants. So nothing was learnt of the performance or methods of the SPSO.

6)  We are puzzled by his use of “I” (first person singular) in parts of the second paragraph under the heading ‘Question 14’ in Mr. Martin’s letter to the LGR Committee of 19 February.
(For example, “As part of our process, I discuss with the complainant their concerns and I put these direct to the organisation with any supporting material I consider they [who?] need to understand this.”)
The use of the first person conveys a false impression of Mr. Martin’s participation in routine investigations.

7)  Some comments under the same heading of Question 14 relate to PE1538, but, as in his 3-page and 23-page documents on that petition, Mr. Martin does not address the specific points made in the petition, nor has he done so elsewhere. The two long documents are smoke screens to befog and distract the mind.
We have previously annotated for the LGR Committee a letter Mr. Martin sent to them in response to PE1538. {His was dated 18 December 2014 [20141218- - SPSO response_to_petitions.pdf]). Our response has the file name [20150104_ _Petitioner_letter_regarding_the_SPSO_response.pdf].}

These comments add to the considerable evidence that all is not well with the SPSO—both the organization and its leader. We therefore emphasize again the contention (of ourselves and the Public Petitions Committee) that there should be an independent review of the SPSO—including especially the adequacy and effectiveness of its investigations.

Annotated email from a Senior Personal Assistant to the Ombudsman to Dr. Burton, 4 March 2015
Accountability Scotland’s comments are in red
Dear Dr Burton
I am now able to respond to your email of 17 February 2015 requesting specific responses to each of your questions.  I would like to advise that FOISA provides access to recorded information that we hold. It does not provide an obligation to explain, justify or respond to questions on the content of documentation or create explanations of our actions.  I am, therefore, able to respond as follows:-
In other words, the SPSO does not have to answer such questions and chooses not to do so.
1.       The information in the second part of the second sentence is not given on the appropriate part of the SPSO website. I presume it would save you some correspondence with complainants if it were to be so. What is the reason for it not being displayed?

The sentence mentioned here is discussed above:
“All customers - complainants and organisations – can request a review if they are unhappy with a decision that is not made personally by me but is delegated to one of our complaints reviewers."

This is a request for an explanation rather than a subject access request and we, therefore, do not hold this information. There is evidently a distinction between holding information and knowing it. As per my previous response, our request for review process is published on the SPSO website and this sets out the role of the Ombudsman in the review process. The  website does not answer the question.
2.       The rule needs clarification, especially as it could presumably happen that a decision is made in consultation between Mr Martin and an investigator. What exactly does it mean for a decision to be made personally by Mr Martin or to be delegated to one of the complaints reviewers?

At the time of the request we did not hold any further information beyond what was provided to you in my previous response. Mr. Martin must surely know! There seems to be an implication here that they do now hold further information.  However, in an effort to be of assistance I can confirm that we have subsequently provided a written response to the Local Government Committee that sets out the Ombudsman’s role regarding casework and can be found at:  This does not give the answer.
As this information can now be reasonably obtained by other means, it would be exempt information under section 25 of the FOISA (information otherwise accessible).
3.       If someone else carries out the investigation and arrives at a decision and Mr Martin then approves it, does that count as a decision made personally by Mr Martin?
      Please refer to the response to question 2 above.     comment as above.
4.       If someone else carries out the investigation and presents the evidence to Mr Martin and then Mr Martin makes the decision without further investigation, is that a decision made personally by Mr Martin?
      Please refer to the response to question 2 above.    comment as above.
5.       To help me understand the scale of the problem, please give me the following information (under FOISA, if necessary). During 2014. how many decisions were made by Mr Martin personally and how many were delegated to complaints reviewers?
I can confirm that we do not hold information in this format. Or in any other format? However, in order to be of assistance, I can confirm that from 1 Jan – 31 Dec 2014 we have laid 46 public interest reports and, as outlined above, in normal circumstances these would be approved by the Ombudsman prior to issuing in draft. This does not help.
Your right to request a review and of appeal
You have a right under FOISA to request a review of any part of this decision, or of the handling of your request, and of appeal to the Scottish Information Commissioner if you remain dissatisfied.  Details about requesting a review and appealing to the Commissioner are set out on page 3 of the attached information leaflet ‘Your Information Rights & SPSO’.
General conclusion from this email: As FOISA does not actually forbid the answering of these questions, there must be some other reason for not giving answers.
to LGR 12 March 2015   this is covering letter to the above attachment
To the LGR Committee from Accountability Scotland regarding the SPSO
Having asked Mr. Jim Martin probing questions regarding his Annual Report the Committee must have noticed that he is sometimes reluctant to reveal the true situation.  The attached document spells out several examples that illustrate this.
Some involve misinformation or simple evasion of questions. Another technique is to waste your time with smokescreens of irrelevant or barely comprehensible verbiage.
For this and other reasons we support the recommendation of the Public Petitions Committee that the SPSO be independently investigated.
There is now a new reason for this, for the SPSO staff survey report reveals major job dissatisfaction. Thus, averaged over the 44 survey questions, a quarter of the responses indicated discontent. This dismal situation was air-brushed in the Annual Report as “The results .... were generally very positive, indicating high levels of job satisfaction, engagement and commitment.... a strong sense of achievement and personal accomplishment”.
We fully endorse the views of Professor Paechter and have evidence to support them.
Yours sincerely,
Richard Burton