The meeting took place in the Parliament building with Huw Williams (Secretary to Scottish Parliamentary Corporate Body and Private Secretary to the Presiding Officer) Janice Crerar (Officer holder Services) and Susan Duffy (Head of Committees and Outreach) and Accountability Scotland who were represented by Mr. Peter Stewart-Blacker, Dr. Richard Burton and Professor Walter Humes.

The following document was submitted before the meeting so that its contents did not require discussion item by item. None of its contents was challenged. Instead, discussion concentrated on systemic problems with administrative justice and aspects of parliamentary procedures and committees that prevent progress. HW, SD and JC listened intently and clearly took our arguments seriously. We will be preparing a full account.

AGENDA for meeting on Friday, 27th January 2017 (2-3 pm)

1. Published evidence for the poor performance of the SPSO and the dissatisfaction of SPSO staff.

2. Evidence on the functioning of parliamentary committees concerned with the SPSO.
Inadequacy of information given to members before meetings; lack of time to read and digest.

3. The SPSO has limited ability to reconsider its decisions. Judicial review is prohibitively expensive and has been very rarely used. We propose that provision be made for (cheaper) Alternative Dispute Resolution.

4. Poor handling of SPSO decisions leaves many customers dissatisfied or with life-changing psychological damage. Parliament needs to take an interest in this.

5. What are the committees and who are the individuals actively concerned with administrative justice now?

6. Implications of ‘Mid-Staffs’.

7. How SPSO performance could be improved; ISO 9001; lessons from other ombudsmen:

The following briefing notes relate to the items on the Agenda.

1. Published evidence for the poor performance of the SPSO and the dissatisfaction of SPSO staff.
SPSO Customer Survey Report 2015-16, November 2016

Customer satisfaction was investigated by means of a questionnaire. The questions are given below. See the SPSO website for further details.

Under the heading “8. Conclusion”, the SPSO notes:
“Overall, we are pleased that respondents expressed high levels of satisfaction with the majority of areas of our service.”

As psychologists are aware (notably the Nobel laureate Daniel Kahneman), perceptions of percentage satisfaction/dissatisfaction tend to be influenced by how the figures are presented. In this report the emphasis is entirely on satisfaction (as opposed to dissatisfaction), as in the conclusion above. Therefore, we have taken the published satisfaction percentages and presented them below as % dissatisfaction.

Interestingly, the dissatisfaction rates are exactly correlated with the question numbers, so that one must read to the end to get the full impact of the data. The possibility of this correlation arising by chance is less than 1 in 10,000 (almost impossible).

Overall levels of dissatisfaction for 2015-16 Service Standard

No Questions

 Overall % disagree

(= % dissatisfaction)

1 SPSO staff treated me with courtesy 14
2 SPSO staff treated me respectfully 15
3 SPSO communication with me was clear 18
4 It was clearly explained to me how my complaint would be handled 21
5 I was told clearly how my complaint was being progressed 22
6 SPSO checked what I wanted to happen 22
7 I was provided with all the support I needed from SPSO to access its service 26
8 SPSO staff listened to me and understood my complaint 27
9 SPSO clearly told me what outcomes they may or may not be able to achieve for me 27
10 I was given a clear explanation for SPSO's decision(s) 29
11 I felt my complaint was dealt with fairly 39
12 I was satisfied with the outcome of my complaint 53
13 The time it took to deal with my complaint was reasonable 54

The SPSO noted that “there was a clear proven link identified between levels of satisfaction and the outcome of the complaint (ie whether or not it was upheld)” and “the findings reinforce the link between satisfaction and outcome”. This seems to be presented as an excuse for poor satisfaction rates, but this does not make sense for most of the above items. One may be unhappy if an invalid complaint is not upheld, but also if a valid one is unfairly dismissed (tardily and disrespectfully perhaps).

The Gibraltar ombudsman achieves a 95-98% satisfaction rate even though many complaints are not upheld.

The SPSO published a staff survey report in May 2014. This indicated much dissatisfaction and poor management. Particular failings were highlighted to be tackled. We have no subsequent evidence on these issues.

2. Support for Mr. Martin’s proposal to allow SPSO to make binding recommendations in specific, limited circumstances.

The Local Government and Communities Committee, 11 January 2017, discussed this issue comprehensively. We fully support Mr. Martin in this. He also discussed the issue in section 3.4 of his notes attached to the Agenda.

3.’A tale of two Holyrood committees

Summary of events:

25/11/2014: Scottish Public Petitions Committee (SPPC) considered petition PE1538 and recommended a review of the SPSO’s service.
7/1/2015: Local Government and Regeneration Committee, armed only with a document hurriedly written by ourselves, postponed scheduled discussion.
14/1/2015: LGRC discussed the report of SPPC. They had by then been given two seriously misleading documents. Recommendations of SPPC dismissed without reported discussion.
9/3/2015: Letter from K Stewart to J Swinney: This is seriously misleading.

The Scottish Public Petitions Committee met on 25 November 2014 to consider petition PE1538 (‘Transparency in SPSO investigations’). Considering written and verbal evidence the committee supported the petition, but also went further to endorse the view that “it is time that we had a review of the SPSO’s service”.

One outcome of the LGRC’s careful deliberations was the burying of their report, unread, in the computer of the justice department. The issue was also referred to the Local Government and Regeneration Committee (LGRC).

The LGRC was to discuss the matter on 7/1/2015, but we learnt just a few days before that practically none of the necessary information was being passed on by the Clerk to the committee members. We were therefore obliged, in a hurry, to send the documents to each one individually, with additional comment. The LGRC was later given a briefing document which contained serious misinformation (coming from the SPSO) that we had already called attention to in our petition. They also had a lengthy document from Mr. Martin which did not directly address six key points made in the petition. (For details, see ‘Commentary from Accountability Scotland on Jim Martin’s letter to the LGR Committee concerning PE01538’ within the Accountability Scotland website document “What happened to our petition 1538. How Parliament works.”)

On 14 January 2015 the LGRC considered the evidence it received from the SPSO following its oral evidence session on 7 January 2015. In light of this the Committee agreed to close the petition.

Thus the final outcome of the careful deliberations of the SPPC has been the burying of their report, unread, in the computer of the justice department and the summary dismissal of their conclusions by the LGRC after little informed discussion. This is surely not how parliamentary committees are meant to operate. Rather their role is that of “taking evidence from witnesses, scrutinising legislation and conducting inquiries”. We note further that parliamentary committees are often not given adequate time to read and digest relevant documentation.

The LGRC (now the Local Government and Communities Committee) formerly invited questions from the public to be put to Jim Martin at meetings held to quiz him on the SPSO Annual Report. Such questions are no longer invited or accepted. The committee is therefore denied this source of information.

The recent meeting, of 14 January 2017, was useful, but nothing was said of the established poor performance of the SPSO. The committee members were presumably ignorant of major issues of concern.

Re letter from K Stewart to J Swinney 9th March 2015

We were dismayed to read the letter to Mr. John Swinney from Kevin Stewart MSP of 9 March 2015. I shall explain why as briefly as possible, but can supply evidence on all points. There is nothing here that the LGR Committee is unaware of, but they are ignoring unequivocal evidence and so frustrating administrative justice and the proper Parliamentary process.

1. The letter starts by referring to our view that the SPSO should be investigated. This is not just our view, but also that of the Public Petitions Committee.
2. The second paragraph refers to a briefing from the SPSO on SPSO processes. We have given clear evidence to the LGR Committee that Mr. Jim Martin made false statements about these.
3. The third paragraph says that “The vast majority of [SPSO constituents = complainants] are reported to be happy with the service provided”. This comment must be based on the Craigforth reports as there is no other evidence. However, the statistics in these reports are almost the worst in the world. A new report has now been published; the majority of customers happy with the service provided is hardly vast (see item 1).
So the sentence is demonstrable nonsense.
4. Mr. Martin was asked about a stakeholder sounding board meeting held in 2014. He did not answer the question, but responded by commenting on the 2013 meeting. Having spoken to one of those present, we know that the answer would have been embarrassing.
5. The SPSO staff survey revealed an appalling level of staff dissatisfaction.
6. The final paragraph of the letter mentions a review of the SPSO undertaken by Parliament in 2009. This is irrelevant because it only considered aspects of legislation raised by Alice Brown and was not concerned with the performance of Mr. Martin who succeeded her in 2009.

Related comments
A person known to us was written to by a government committee and asked to write a government opinion on the effectiveness of the Ombudsman. This person admitted to us that she prepared the report by simply cutting and pasting from an SPSO press release, without independent verification of any of the statements.

4. Alternative dispute resolution (ADR)

The SPSO will only reconsider decisions in particular circumstances. Otherwise, the only recourse is judicial review, which extremely few can afford. We therefore advocate making independent ADR available, which would be much cheaper.

Jim Martin wrote at length to John Swinney about this (7 July 2015), but did not seem to address the points that concern us.
On several occasions to our knowledge Jim Martin has called attention to the availability of judicial review without pointing out its limitations.
To quote ‘JUDICIAL REVIEW SCOPE AND GROUNDS’ by Scott Blair, Advocate:
“Judicial review is available, not to provide machinery for an appeal, but to ensure that the decision-maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. It is not competent for the court to review the act or decision on its merits, nor may it substitute its own opinion for that of the person or body to whom the matter has been delegated or entrusted.”

ADR allows appeal on the facts.
Correspondence between Jim Martin and John Swinney shows that there is a misunderstanding between them as to the use of ADR instead of judicial review.
We send scans of their letters separately.

5.Psychological effects of customer dissatisfaction

It is hard to offer evidence on this without citing individual cases There is only a little psychological research on this. The SPSO has sometimes to deal with ‘difficult’ customers and may respond by refusing further communication. Although problems may only involve frustration at injustice, there may also be financial or employment issues.

6. What are the committees and who are the individuals actively concerned with administrative justice now?

The letter from S Duffy gives the impression of general complacency.

STAJAC has not been replaced, despite government assurances. The administrative justice system (including the SPSO) has not been kept adequately under review. Also there is no longer a supervisory body for tribunals – as has been relevant to the alleged abuse of power within the Crofting Commission.

7. Implications of ‘Mid-Staffs’.

The Mid Staffs hospital scandal demonstrates there are systemic failures in delivery of administrative justice. Despite five enquiries , over 300 deaths and 15 million pounds being spent on the Francis enquiry not one valid complaint was received by the PHSO despite her title of public and health services ombudsman. The SPSO is based on the English model. Francis did not report on this fact.

8. How SPSO performance could be improved

According to the 2002 Act “the procedure for conducting the investigation is to be such as the Ombudsman thinks fit”. However, Parliament should at least be aware of ways in which SPSO performance could be improved.

a. The ombudsman should adopt the international standards on complaints and quality assurance of ISO9001 or ISO10002. These standards require internal quality assurance processes that check outcomes as well as processes and would help to provide public assurance. ISO9001 is used by ombudsmen in Australia and the SPSO’s lawyers and is promoted by the Scottish Executive.

b. The Gibraltar ombudsman achieves 95-98% satisfaction rates, regardless of his decisions. This is achieved, not only by effective investigation, but by full and sympathetic explanation of all decisions.

c. Adoption by the SPSO of the “presumption of honesty rule” that is applied by the Netherlands ombudsman.
From the Fourteenth PASC Report of Session 2013–14:
The concept of “fairness” was very important for citizens in the Netherlands. The daily work of National Ombudsman of the Netherlands involved working out what was fair in individual cases—not what was the law. He stressed four elements of fairness: personal contact; fair treatment; equal footing and trust in citizens (most citizens were honest and should be treated as such).
To this one may add that bodies under SPSO jurisdiction have more motive to misrepresent facts in self defence than complainants have to complain: ‘truth is the first casualty of evasion’,

d. Investigators need to establish what procedures should have been followed by a body under jurisdiction before investigating what actually happened.