PE1964: Create an independent review of the Scottish Public Services Ombudsman
A submission by Accountability Scotland
We write in response to the SPSO, SPCB and Scottish Government’s written submissions.
The claim made by both the SPSO and the SPCB that an independent third party appointed by Parliament to investigate the adequacy and effectiveness of the SPSO will impact its independence is misleading and wrong. This is also true for any review of individual cases as their outcomes will remain unchanged irrespective of any findings due to safeguards within the Ombudsman Act. Apart from a Judicial Review no one has the power to challenge the independence of the Ombudsman because the SPSO is granted significant discretion about what and how it investigates referrals made to them. Even then, this challenge is limited to a point of law.
It is the use of this discretion which concerns us the most. With no oversight in place the SPSO for 21 years has been free to do what it wants without any fear whatsoever. We see the damage this is doing to complainant’s mental health and human rights on a regular basis. This is reflected within reviews left on the likes of Trustpilot where many accuse them of being biased as well.
In Point 12 of the SPSO’s response to the Committee it confirms:
“the role of Ombudsman and mediator institutions in the promotion and protection of human rights, good governance and the rule of law”.
If so, why is the SPSO using its discretion to deny the majority of complainants who had met the statutory test for a fair and impartial investigation as per their human rights within Article 6 of the EHCR. In 2021-22, up to 1,636 of them who had met the criteria were potentially denied this basic human right. With only 284 actual investigations in 2021-22 this looks to be a sizeable problem given the feedback we often receive.
When recently asked about this, Rosemary Agnew told the Sunday Times :
“whether or not we should investigate something is a decision we do not take lightly, and our focus is always on the benefit to, and outcomes for, the person making the complaint”.
How can this possibly be true if the vast majority of complaints that met the statutory test in 2021-22 are not investigated by the SPSO. People don’t make referrals for the fun of it, they do so because they are not happy with the referred organization’s response. The is only way to determine if the SPSO is protecting our human rights as it claims it is, that’s an independent review of individual cases. Without doing this basic level of due diligence this can’t possibly be done.
In 2022, the SPSO faced independent oversight for the first time in many years, albeit it in another area, i.e. it related to a complaint made about how they handled a service complaint made about them (not another party). Following a review by the Information Commissioners Office (ICO) they were asked to rectify a false claim it had made about one of our members.
When they failed to do this our member took legal action against the SPSO. Faced with proper scrutiny the SPSO had no option but to revisited our members allegation where they uncovered an error on their part. They admitted this to the court, corrected the false claim and agreed to pay compensation for the distress this had caused.
If the SPSO judges others based on how it handles complaints against themselves we are in real trouble as their conduct is relation to this was both unlawful and unacceptable.
In 21 years there has been no has review of the SPSO. When you look at the most basic statistics, i.e., 284 investigations out of 3,655 complaints (7%) in 2021-22 at an average cost of £21,704 per investigation based on an annual expenditure of £6,164,000 something is clearly amiss.
Eight years ago, a decision was taken to delay Accountability Scotland’s previous request to review the SPSO. Given our current concerns it’s essential and in the public interest that an independent review of the SPSO moves ahead this time.
We are convinced that a stronger, more effective and better value for money Ombudsman will be the outcome of this and that natural justice for the majority will finally be seen to be served.
Dated: 8th March 2023