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The content of the letter from The Secretary, Accountability Scotland, dated 30th January 2012

Accountability Scotland (formerly called Integrity for Scotland) was invited by previous members of the SPCB (Alex Johnstone MSP and Mike Pringle MSP), through Peter Stewart-Blacker, to submit the accompanying reports concerning the SPSO. Our points of contact have been Janice Crerar and Huw Williams, who have been extremely helpful. We understand the difficulties they have had in drawing conclusions from the Craigforth statistics as they have no formal training in this subject and are wholly reliant on Craigforth and the SPSO’s interpretations.

In essence, we say that:

  • The SPSO, while clearly following efficient procedures, fails adequately and effectively to investigate and report on a large proportion of cases. This aspect of the SPSO’s work has never been investigated since the SPSO was set up ten years ago.
  • As a result, Parliament cannot be well informed on the justice of the SPSO’s rulings.
  • Furthermore, Jim Martin himself lacks the necessary feedback to judge this aspect of his organization’s performance and so report on it reliably.
  • The SPSO does lay investigation reports before Parliament, but as there is no formalised scrutiny of these by any part of Parliament or the Scottish Executive that could deliver accurate and quality information on the SPSO’s general performance, there is a need to commission an independent investigation on the quality of reports.

It is important to note that the evidence we report is from the SPSO’s own sources. It is presented in three reports, A, B and C, together with a cover document. These are summarized in the following table. (Some other information (referenced by Roman Numerals) is given in the Appendix.)

Item

Description

Main Findings / Conclusions

Cover Document

Introduction to reports A-C, with Commentary

There is a clear need for adequate and effective external scrutiny of the SPSO in regard to the fairness and justice of its rulings.

Report A

Analysis of Craigforth surveys of complainants and bodies under jurisdiction

The survey reports (now discontinued) provided an inadequate analysis of SPSO performance, but did show that no more than 50% of complainants had recorded satisfaction with it.

40% recorded dissatisfaction.

Dissatisfaction was much greater with local authority issues than with health issues.

Report B

Analysis of Statistics from the SPSO website

The number of submissions accepted as ‘complaints’ each year doubled, yet the number investigated declined from 18% to 4% (and only 0.6% for housing associations).

Each year the percentage of complaints reaching the investigation stage for Health Authorities is twice that for Local Authorities.

Report C

Commentary on SPSO Annual Report 2010-2011

In important respects the Report lacks clarity and informativeness, because of obscure terms and errors.

It demonstrates, and argues for, the SPSO’s lack of accountability in respect of the justness of its rulings.

Our primary objective in submitting this evidence is to persuade the SPCB that they should look closely at the functioning of the SPSO – in regard, not so much to processes and procedures, but to the outcome that matters most, the delivery of transparent justice. In the words of Lord Hewart:

"Not only must Justice be done; it must also be seen to be done."

We believe that there is a clear and urgent need to establish an independent mechanism for monitoring the adequacy, effectiveness and justice of the rulings of the SPSO, as recommended by Dr. Bernard Kingston in 2006 (II).

It is as if the Heinz Company were to run a bean cannery that is well monitored for mechanical efficiency and cost-effectiveness, but without any checks on taste and quality.

The SPSO has given the impression that his critics are just serial or vexatious complainants, but we are aware that one body under his jurisdiction, a Health Board, has suffered similar problems, with catastrophic effects on a GP’s personal and professional life and with far-reaching financial implications for the Health Board (III*). The reports (A-C) accompanying this letter were researched by two scientists well-acquainted with statistics, neither of whom has been personally disadvantaged by rulings of the SPSO. One submitted two complaints to the previous Ombudsman, on behalf of the community and not of himself. The other submitted a complaint, again on behalf of the community, that was actually successful.

In researching evidence we are aware of the possibility that the SPSO’s words might be subject to some positive appraisal (IV). Jim Martin has stated (IV) that:

“Individuals who are unhappy with the outcome of their complaint have the opportunity to express their dissatisfaction through our challenge to a decision process.”

However, there are only very restricted grounds for challenge or appeal (IV, V, VI). Currently, there is external scrutiny only of procedural service complaints by the Independent Service Delivery Reviewer (and very few of these, chosen by the SPSO). She was appointed by the SPSO (for her customer service experience) and is therefore not fully independent. Moreover, she has a very limited remit that specifically excludes case reviews (Report C). Surveys previously carried out by the social research company Craigforth have been discontinued by the SPSO, but in any case they produced little more than statistics on the satisfaction and dissatisfaction of complainants and of bodies under the SPSO’s jurisdiction. Like the Independent Service Delivery Reviewer, Craigforth was chosen and appointed by the SPSO. Experience elsewhere shows that such appointees are loath to bite the hand that feeds them.

An obvious source of evidence on the adequacy and effectiveness of the SPSO’s performance, and on their ability to produce just decisions, lies in the experiences of individual complainants. However, such evidence tends to be complicated and voluminous and may, in the end, be regarded with suspicion as ‘anecdotal’ or unrepresentative. This is one reason for not presenting such evidence here. For the future, we suggest an approach that does not involve mastering all the intricacies of particular cases. This is to pick out some of the many clear-cut and demonstrable examples in SPSO correspondence and rulings of such things as high-handed dismissal of evidence, lack of impartiality, faulty logic and arbitrary decisions. Accountability Scotland would be pleased to prepare such evidence. For now we simply note the experiences of Murdo Fraser MSP (VII) and the damning comment of an English Ombudsman (VIII).

Another issue that needs to be addressed is the knowledge, skills and experience of the SPSO staff. That only about 50 % of complainants are satisfied with the performance of the SPSO may be partly due to the selection and training of the staff. Case workers have been recruited to the SPSO because of their experience in ‘customer service’ and not for proven abilities as investigators. ‘Customer service’ involves activities designed to enhance the level of customer satisfaction, namely the feeling that a product or service has met customer expectations. Although that is useful, the investigators appear to lack the investigatory experience that comes from training and working in inspection, review, consultation and audit services. Furthermore, despite the customer service skills, past complainant surveys revealed high levels of customer dissatisfaction. The SPSO should at least have been able to persuade complainants that they have been properly treated. An SPSO case worker needs a skill set for discovering the truth and delivering justice.

Even Jim Martin was himself criticized by the SPSO for his procedures when Police Complaints Commissioner (IX). When the SPCB considered his re-appointment he was tested at interview on several criteria, but apparently not on his knowledge of how to carry out adequate and effective investigations (X).

We would be delighted if the Corporate Body would like us to appear before them to answer questions, to present the facts and discuss potential solutions within the limitations of the SPCB’s powers. We do also have a more forensic report on the detailed management of the SPSO.

Yours sincerely,

Dr. Richard Burton, Secretary