The following has been reproduced from Annexe D.
Petitioner submission of 27 October 2022
Throughout this petition we refer to the current SPSO, Rosemary Agnew, but the same problems have been reported with all previous Ombudsmen. This petition is not contending that every investigation / decision by the SPSO is flawed, but it is concerning that any are.
Accountability Scotland was formed in 2011 by members of the public who had been harmed by the SPSO. Ever since, traumatised and distressed people have approached us following engagement with the SPSO, many describing deteriorating health as a result of the SPSO exacerbating their ordeal and treating them as if they are the problem.
Complaints against the SPSO
When investigating complaints against itself, the SPSO refuses to address complaints of factual errors it makes, or when evidence directly contradicts their statements and / or decision. Here is a typical response to a complaint against the SPSO: “The remit of the service delivery complaints process... is to investigate complaints about SPSO's service... it is not to take a view on how evidence was assessed and taken into account in reaching a decision.”
The SPSO’s refusal to explain why incriminating evidence has been ignored, combined with the wording of The SPSO Act, leaves the SPSO free rein. Contradicting evidence is one of the most common complaints people make against the SPSO.
Additionally, the SPSO need not present evidence that supports its decision, so another common complaint is that it parrots the unsubstantiated claims of the public body, despite evidence proving the opposite to be true.
Unsatisfied complainants can then go to the Independent Customer Service Complaints Reviewer which, similarly, does not look into the SPSO’s investigations. It simply assesses whether the SPSO responded appropriately to a service complaint. It cannot question whether the story the SPSO presented is factually correct. This is analogous to deciding whether the table service is polite and efficient, even if the food is rotten.
Finally, the SPSO routinely tells people they can pursue Judicial Review if unsatisfied, yet the cost is prohibitive to almost everyone. There is no one to go to in order to blow the whistle on the SPSO.
Need for structural independence
In 2013 the UK Supreme Court issued a unanimous ruling that questioned Police Scotland’s ability to investigate itself and shone a light on what can happen when a service has no oversight at all. (Kevin Ruddy v Chief Constable Strathclyde Police + The Lord Advocate). The public has seen how lives can be destroyed when organisations, such as the police and Post Office, investigate themselves. We contend that the SPSO is no different. It is our understanding that Rosemary Agnew, the current SPSO, recently investigated and cleared a claim that her office bullied complainants.
In another example, Rosemary Agnew in our understanding falsely insisted to a family and Bob Doris, MSP, that statutory policy intended to protect vulnerable children (and violated by a school under investigation) is discretionary – therefore, she argued, the school acted correctly. The SPSO claims it considers complaints that “its staff do not possess the relevant skills and knowledge for the job”, so this fact was included in a service complaint against the SPSO, along with other examples of illogical arguments and false statements. Rather than address the mistakes they made, John Stevenson, Head of Improvement, Standards and Engagement at the SPSO simply explained, “We only employ staff who demonstrate that they possess the relevant skills and competencies for the job.” The SPSO’s unwillingness to countenance that they make mistakes – while being confronted with them - is extremely concerning.
Witnesses
The SPSO has no interest in contacting independent witnesses. We have examples of witness testimony supplied as evidence being discounted. Quote from an SPSO investigator prior to an investigation:
“Nor will we be speaking to any potential witnesses”
Meanwhile, they have lengthy contact with the PR departments of the public bodies accused of wrongdoing. This leaves people alone confronting huge organisations - such as councils - who may have a vested interest in maintaining their image. There is no penalty if the organisation hides evidence or even lies. If two opposing sides disagree about an event in which one was harmed and witnesses can shed light on the matter, should they not be heard?
Finally, examples of statements by members of the public who responded to a survey we conducted on experiences with the SPSO:
- “I have given up with this but it will haunt me for the rest of my life.”
- “My experience with the SPSO made me lose the will to live.”
- “Child protections have been weakened across Glasgow as a result of our complaint.”
- “My emotional health has been in decline since the incident and pretty much nose-dived after the SPSO.”
- “SPSO added to the damage that had already been done.”
Petitioner submission of 17 November 2022
We would like the opportunity to speak to the Committee.
The Scottish Government has stated that resource constraints, the independent nature of the Ombudsman and Parliament’s “role in scrutinising the work of the Ombudsman” prevents them from taking forward an independent review of the Ombudsman “in the near future”. It would be helpful if the SG confirmed whether they think an independent review of the SPSO would ultimately be desirable or not, with their reasoning.
In the SG’s response, they reiterate the SPSO’s own material, assuming it to be reliable. The SPSO presents itself in an excellent light in its own literature. We have evidence to show the SPSO covers up its mistakes at a cost to the public.
SPSO complaints process
If the SPSO clears itself of wrongdoing, unsatisfied people can make a “service complaint” to the Independent Customer Service Complaints Reviewer. The SPSO established the ICSCR itself and chooses who to employ to fill this role, raising questions about its independence. More significantly, the ICSCR does not look into the SPSO’s investigations. If an investigation is biased or inadequate, the ICSCR will never know. If the SPSO has ignored evidence that incriminates the public body, that evidence will not be mentioned in the SPSO’s report and there is nothing the complainant can do to have it included. As a result, it may look to the ICSCR, or anyone reading the SPSO’s report, that they are making a reasonable case. Imagine if witnesses to a murder could not testify that they saw a person stabbing the victim. This is how hamstrung some cases are by the SPSO, and how public services can sometimes commit systematic breaches of policy and negligence without anyone knowing about it, apart from the victims. As the Scottish Government admits in its submission:
“Matters related to SPSO’s decisions or basis for those decisions (including evidence gathered to make that decision) are not issues within the ICSCR remit.”
A complaint reaching the ICSCR may have become unrecognisable, due to false claims and missing facts, including the SPSO wording the complaint themselves. We have seen this used against the complainant, as the SPSO chide them that evidence of wrongdoing they have supplied is not relevant to the exact wording of the complaint they chose to investigate.
The SG titles a section of its response “Complaints about decisions made by the Ombudsman”. In fact, it is forbidden to complain about a decision made by the SPSO. The SPSO claims to conduct reviews under specific circumstances, but we have seen plenty of cases where - despite a complainant sending new evidence which fulfils the SPSO’s criteria and shows breaches of policy, wrongdoing etc - this promise is not kept and a review is flatly rejected.
“External review / safeguards”
The SG cites Audit Scotland and the SPSO’s annual reports to Parliament as safeguards, but neither amount to real scrutiny of the SPSO.
We have met with Audit Scotland and, similarly, their work is not to look into how the SPSO conducts its investigations or makes its decisions - nor do they wish to be drawn into that role.
The SPSO’s rosy annual reports to Parliament are at odds with the public’s perception. While upholding more complaints against itself, it doesn’t mean faulty investigations can be reopened and re-adjudicated.
An SPSO Corporate employee says “we would usually issue an apology… An upheld customer service complaint would not affect the decision made on your public service complaint.” After a faulty investigation, a bad decision still stands.
Conclusion
Allowing the SPSO to continue its work without oversight, despite mounting complaints from the public, is damaging to Scotland and its people, who deserve fair, adequate and effective investigations of their complaints. It takes enormous time and effort to complain to the SPSO and people describe impacts to their health and work during engagement with them. Most people tell us they only do it to prevent the same thing from happening to someone else. They aren’t seeking compensation or for someone to lose a job. They simply want an apology and for the public body to learn from their mistakes and improve.
Taking the SPSO’s word that it is doing a wonderful job, while failing to investigate the public’s concerns will not save resources: it will drain them. It will harm more people and lead to continuing problems in public services, creating ever increasing complaints and requests from the SPSO for additional funding. Many public reviews state that it would be better to remove the SPSO and its funding so it can’t hurt anyone else.
Any additional funding should be contingent on the results of a proper independent review of the SPSO and the legislation by which it is bound.
After 20 years of the Ombudsman doing whatever it “thinks fit” it is time to test its fitness
The following have been reproduced from Annexe E.
John Stuart submission of 27 October 2022
Administrative justice may not be the most high profile or glamourous area of justice but is nonetheless of great importance to many people. In Scotland a key player in the system is the SPSO and from the survey conducted by Accountability Scotland, and other surveys, there is clearly a good deal of dissatisfaction with this body.
- Many respondents to that survey are unhappy, not so much with the decision reached by the SPSO, as by the inadequate way the investigation has been carried out. The survey elicited many examples. The satisfaction rate of complainants in Scotland compares very unfavourably with that of Gibraltar. This may be due to the training officials receive or the background from which they come – e.g. many from customer service, few with legal experience – or inadequate staffing, but the problem needs to be addressed.
- There seems to be little provision for impartial review of decisions of the SPSO apart from seeking a judicial review, which would be prohibitively expensive for most people.
- When the SPSO finds in favour of the complainant it has a very limited range of effective sanctions it can impose on the BUJ.
- Since the establishment of the SPSO there has been no proper review of its performance by the Parliament’s Corporate Body to which the SPSO is in principle accountable. It is clear that such a review is now required.
Scotland should aim to emulate Gibraltar’s success rate. The crave of the petitioners should be granted.
Jean Erskine submission of 31 October 2022
This is a letter of support for PE1964 seeking an independent review of the SPSO, in order to investigate complaints against the SPSO, assess the quality of its work and decisions, and establish whether current legislation governing the SPSO is fit for purpose.
In 2006-2007 the SPSO was not fit for purpose when dealing with my medical negligence case. After rejection by the SPSO, for over ten years I fought and won my case in a court of law in 2017 at much personal expense, loss of time and deep anxiety, and thereby proved how wrong the SPSO had been.
It had required a lawsuit to correct the SPSO’s blunders.
Catalogue of my experience with SPSO’s blunders:
- No personal interview. A personal, face to face, interview should have been offered to me as complainant to prevent innocent errors by a lowly citizen in front of a faceless bureaucracy. No empathy with someone’s personal plight and distress. We were not gratuitous troublemakers but honourable people acting with integrity.
- The SPSO had sent me a draft report which I amended to correct inaccuracies (with reasons). Most of these amendments were ignored in the final report.
- There was no appeal procedure against a decision by the SPSO.
- ‘Open to all’: The SPSO produced a leaflet stating: ‘….provides an open, accountable and accessible public services complaints system.’ Also: ‘…an independent, free and fair response to complaints about public services.’
The SPSO never probed deeply into my individual situation, nor with any personal attention to my distress; I was just another bureaucratic exercise, to be ruthlessly dispensed by blinkered practices compliant with the need for a speedy outcome.
At present it seems to us that the office of SPSO is wasting taxpayers time and money by refusing to listen to voices of experience.
Cases handled by the SPSO can be from individuals and families who genuinely believe in their grievance. To be faced by an incompetent and unfair system of judgement can be psychologically damaging to their wellbeing and their welfare for the rest of their life.
As a knowledgeable woman who cared for her body and knew its workings, I was convinced from first noticing changes in my breasts that I had breast cancer as early as 2002. The SPSO in 2006-2007 could have concluded the same, and could have saved me over ten years of wearying work, at the same time as surviving a late diagnosis and poor prognosis, regardless of the cost of hiring a legal expert.
This case is now over, but seemingly over the years (ie 2007-2022) the SPSO has not been prepared to listen to similar failures on their part, nor attempt to make improvements for the future.
Anonymous submission of 14 October 2022
I fully support the petitioner. In a 21st Century Scotland the primary role of the SPSO is to ensure a basic human right - the right to a fair hearing.
Members of the public are entitled to an adequate and effective investigation of their complaints, independent of bias. Rosemary Agnew, the current Ombudsman is afforded a unique, privileged and trusted position. A position which is not subject to the same scrutiny and oversight as most other Crown appointees. In my opinion this can only work if the Ombudsman’s integrity and trustworthiness is beyond reproach.
My view is that the SPSO is not trustworthy nor does it act with integrity at all times. I base this on facts and evidence gained by experience with the SPSO.
In March 2022, the Information Commissioner’s Office (ICO) agreed that a claim the SPSO had made about me to the Independent Customer Service Complaints Reviewer (ICSCR) was false and gave them thirty days to correct this. This is important because the ICSCR had relied on this incorrect information to find in the SPSO’s favour. When the SPSO failed to meet this deadline, I took legal action to enforce my rights and have this unsafe ICSCR decision voided.
Faced with proper scrutiny for the first time, i.e., the Sheriff Court, the SPSO finally admitted that it had acted unlawfully by making a false claim about me and refusing to rectify this upon a valid and legal request. Compensation for the distress this has caused me was agreed, the SPSO accepted that the ICSCR decision was wrong and voided it. At a hearing in October 2022 the court instructed the SPSO to also pay my court expenses. The hypocrisy of the SPSO’s intervention in a supposedly independent investigation is stunning. The organisation which sets the standards for others to follow when handling complaints failed to follow these standards, gave false information and then tried to cover up its actions. Had I not taken the SPSO to court they would have succeeded.
Judging by the reviews of the SPSO online, I am not the only member of
the public aware of this type of behaviour.
The irony of this is that whilst I succeeded in bringing to light the lengths to which the SPSO will go to harm a complainant and create the appearance that it is beyond reproach, none of this has impacted on the reason I engaged with the SPSO in the first place. None of this will result in a proper investigation of my original complaint when I approached the SPSO expecting a fair hearing, as per my human rights. They denied me a fair hearing then and did the same again with regard to my ICSCR complaint. No one should need to go to the lengths I have, i.e., instructing legal action to get the SPSO to correct a deliberate, unfair, wrongful and unlawful act by them.
The Petition does not mention something else which is also important to note. The Independent Customer Service Complaints Reviewer does not act as oversight of the SPSO. It simply assesses whether the SPSO handles service complaints in line with the process, in a timely and polite manner. They cannot look into whether or not the SPSO conducts fair and just investigations.
I agree with the Petitioner that Parliament needs to look at whether or not the SPSO is delivering justice for the public. My experience tells me they are not. If they have made false claims about me three times (two more claims to come) it begs the question - how often are they doing this with others? I personally think I am the “tip of the iceberg”.
Bob Doris MSP submission of 8 November 2022
My thanks to your committee clerks for drawing the progress of the above petition to my attention, and, in particular the further consideration by the committee of the petition on Wednesday 7 December 2022.
Whilst other parliamentary commitments mean I will not be attending said meeting, my thanks for the opportunity to make some brief remarks based on my experience in supporting my constituents engagement with the SPSO, as well as the Scottish Government response to the petition.
In the first instance the Scottish Government reply lacked clarity in one aspect. Whist it was clear that resource implications will mean there is unlikely to be a review in the near future, the Scottish Government did not engage with what I would consider the underlying matter to be, that is - is there value in having a review of the SPSO 20 years on?
For me there is a clear value in doing so although I also acknowledge resource implications may delay any potential review. I accept that on occasions members of the public will never be able to reconcile any SPSO findings which do not uphold their complaints. However I am not convinced there is a robust and effective process by which individuals, who believe the SPSO has erred in its conclusions, can have a meaningful review of SPSOs decisions. I would include the Independent Customer Service Complaints Reviewer in that regard.
That has certainly been the experience of my constituent.
The Scottish Government has described the process and safeguards within the SPSO process and system at present. However it is silent as to whether these are effective or otherwise. This may be because there has been no meaningful or detailed analysis of these. I am also well aware of the desire of the SPSO to have additional powers. It would seem reasonable to review how effective the SPSO is currently and what changes may be required as matters stand, before considering extending the SPSO’s remit or powers.
It would be helpful to better understand the Scottish Government’s thinking in this area.