Survey of the Scottish Public Services Ombudsman by Accountability Scotland
In support of a Petition to the Scottish Parliament
Reference No: PE1964
Report Dated: 17th March 2020
Executive Summary
Accountability Scotland was formed a decade ago to Campaign for the Improvement of Administrative Justice in Scotland. The key Scottish body charged with this is the Scottish Public Services Ombudsman [SPSO].
Over the years it has become apparent that there are many failings in Administrative Justice ranging from bullying in the NHS, to maladministration in the Inspection of Schools, to the levying of Water Charges, and many many other matters.
However, our efforts have concentrated on attempting to persuade the SPSO to reform their practices, and to improve the standard of their decisions which in many cases appear to be what may be best described as protectionist of the organisations they seek to monitor [Bodies Under Jurisdiction or BUJs]
To demonstrate this we surveyed our members many of whom joined as a result of suffering what they believe is an unjust decision.
The results of the survey, thus possibly somewhat biased, are arguably conclusive.
Many of our members are well educated and experienced: they include University Professors, Chartered Engineers, Journalists, Business people, Teachers, Nurses, and other professionals.
We trust that our recommendations will be read, understood, considered, and implemented.
We seek to engage with Parliament and Government to enable constructive improvements to our society and governance of state organisations in Scotland.
Overview
The Questionnaire was was presented using Google Forms, and released on 12th November 2019.
The data shown in this report relates to forty separate responses and the comments that had been received by 3rd December 2019. Three duplicates were removed, the earlier ones being deemed the ones to remove. By 20th February 2020, a further four valid responses have been received, but these have barely changed the statistics.
Sixty three people who had been invited declined to complete the form. Several declined as they had not put a complaint to the SPSO.
Only the Accountability Scotland Administrators have access to the email addresses to which the questionnaire was sent and who responded.
The sample size, although not large, was considerably larger than, for example, that of the Commission on Parliamentary Reform.
Some points
Representation
The vast majority of people are unable to properly represent themselves. Lord Denning's famous quote that "A lawyer who represents himself has a fool for a client" applies. Most people cannot afford representation: thus there needs to be "a public investigator".
There is also a huge group of people who cannot express themselves in writing, or seek out and address the basics of the matter forming the complaint.
Exchange of Information
Having received a complaint, the SPSO sends it to the BUJ. The BUJ sends their response to the SPSO - often that which has already been sent to the complainant in summary. This is NOT sent to the complainant for review, which is contrary to the rules of natural justice. The courts in both Scotland and the rest of the UK require that any relevant document or information in one party's possession that may aid the other party must be provided to that party. [Note the collapse of rape trials in recent years.]
Independent and Effective.
The SPSO MUST ensure that the BUJ's investigation has been “structurally independent” and effective. [search “Ruddy” on the Accountability Scotland web site]. This implies that the BUJ must behave in an Open, Honest, and Accountable manner
Publish Procedures
The SPSO does not publish its procedural documentation in a manner similar to the courts.
Determination of Facts
The facts in a case are determined by the SPSO with the same legal significance that a Tribunal has, but without the necessary formality.
Interpretation of the Law
The SPSO is not allowed by statute to interpret law - but very often it does.
Independent Appeal Procedure
There is no proper Appeal Procedure. All that is available is to proceed to the courts by way of Judicial Review to have a decision on a point of law corrected.
Erroneous Decisions
Decisions are often erroneous. There are some typical cases where:
- Someone went to a tribunal and having secured a YES result, then went to the SPSO who returned a different result NO [Housing Benefit].
- The facts reported by the SPSO are evidence that the determined result is wrong [Water Charges].
- The SPSO has acted counter to legal advice it sought and received, and then closed the complaint by issuing a statement of jurisdiction to the Body Under Jurisdiction removing jurisdiction, so countering the legal advice.
Staff Training
Poor staff training [employing people “off the street”] combined with low staff morale, and an absolute lack of proper public audit would be solved by the SPSO seeking accreditation to ISO9001.
The report was approved on 17th March 2020. To see the report, click here,