Scottish Parliament

Public Petitions Committee

Tuesday 4 December 2007

[THE CONVENER opened the meeting at 14:00]

New Petitions

Scottish Public Services Ombudsman (Appeal Tribunal) (PE1076)

The Convener: The next petition is PE1076. One of the local members wishes to contribute — I invite Murdo Fraser to come to the table. The petition, which is by DWR Whittet QPM, calls on the Scottish Parliament to set up an appeal tribunal to review final decisions by the Scottish Public Services Ombudsman in any cases in which the complainer so requests.

Murdo Fraser (Mid Scotland and Fife) (Con): Thank you for the invitation to the committee. Mr Whittet is indeed a constituent of mine, and his petition relates to a proposed right of appeal against decisions that are made by the Scottish Public Services Ombudsman. As I am sure members are aware, decisions of the ombudsman are currently final and there is no appeal right. Mr Whittet is a retired police officer with 35 years' service, 12 of which were at a senior level. The substance of his complaint is not particularly relevant to the petition; his concerns are about the way in which his case was handled by the SPSO, what he felt were administrative failures and a failure to address the basis of his complaint.

The practice of the SPSO is to issue a draft before its report is laid before Parliament, to allow comments to be made. In Mr Whittet's case, he commented but, in his opinion, his comments were entirely ignored. The petitioner feels that a complainer has no right to challenge a view that the ombudsman's office takes. Given what he feels are the failures in the handling of cases by the ombudsman's office, that needs to be addressed.

From my experience, Mr Whittet's views are by no means unique. I have been contacted by several other constituents who had similar concerns about the way in which the ombudsman handles cases. I have raised the concerns in the Parliament, at Scottish Parliamentary Corporate Body question time and when the current ombudsman was reappointed earlier in the year. I know that other members have similar concerns. Since the petition was lodged, Mr Whittet and I have been contacted by several members of the public expressing similar concerns.

The petition is about creating a right of appeal. There is no current right of appeal against the Scottish Public Services Ombudsman's decisions, no matter how poorly a case may have been handled and no matter what factual errors there might be in the final report. That appears contrary to natural justice. The only currently available remedy for people who want to challenge the SPSO's decisions is to go for judicial review. However, judicial review is complex legally and extremely expensive. Members might recall a recent judicial review by Argyll and Bute Council against a decision of the SPSO in relation to free personal care. The legal costs of that case to the ombudsman's office alone amounted to about £74,000. For private citizens who want to pursue judicial review, the cost will clearly be prohibitive in the great majority of cases. Therefore, we need to put in place an affordable review mechanism to allow people who are not happy with the ombudsman's handling of a case to challenge that.

Nanette Milne: We need to find out from the Scottish Government and the SPCB why no appeals procedure has been set up, because such an appeals body seems a reasonable final port of call. I have no idea what the situation is in other parts of the United Kingdom. Is there an appeal beyond an ombudsman in Northern Ireland or in other parts of the UK? Perhaps we could write to the appropriate people to find out about that.

The Convener: I do not know. We can explore that to try to get clarity.

Robin Harper: If a case can be made for the proposed appeals tribunal—although I am not entirely persuaded that it can be—we would have to set up similar tribunals for all the other ombudsmen. We could not have a tribunal for just one of the ombudsmen, because setting it up would establish a principle. We need to consider the wider context of whether we should have an overall appeals body for cases that have been through the various ombudsmen and tribunals—a sort of super tribunal, if you like.

Many cases with which the SPSO deals have already been through complaints procedures in the public services. They have been through one process and then another one, and now we are considering a third process of appeal. Are we considering over egging the pudding?

Rhoda Grant: I tend to agree with Robin Harper. Before people go to the ombudsman, they use all the appeal functions in the public body that the complaint is about, for instance, a council. People do not suddenly go to the ombudsman without pursuing the matter through the available appeals processes in the council. The ombudsman is almost a final stop or a last-gasp independent appeal to consider the council's actions.

I guess that the question is where we stop appealing. I am not sure that another layer of appeals would be helpful. If people are unhappy with the way in which the system works, the office of the ombudsman should be reconsidered to find out where those concerns are coming from. However, we do not want to set up yet another appeal mechanism; a line must be drawn somewhere.

Nigel Don: I come from much the same tack, convener. If we do what the petition requests, bearing in mind that judicial review will still wait at the other end of the process, we will have more appeals on matters of public administration than we have on matters of law, given the number of levels that would be involved. I cannot believe that that was the intention when the ombudsman was set up. As I understood it, the idea behind the Ombudsman — it is based on a Scandinavian model from 20 or 30 years ago—was that someone could look at things dispassionately and try to nudge people in the right direction. If we are not careful, we will turn it into a monstrous legal system.

I have drifted into the substance of the case rather than whether there is an issue, which is what we are meant to assess. Nevertheless, I would be extremely worried if we pushed the matter too far, because I am not sure that it would be going to the right place. I am with Rhoda Grant—if something is wrong, it is in the ombudsman's office; that is the bit we should fix instead of looking for a further appeal mechanism.

The Convener: Do members have any other comments or observations?

Nanette Milne: I hope that we will get answers to these concerns if we get in touch with the Government or the corporate body.

The Convener: Murdo, do you have any final comments?

Murdo Fraser: No. I have listened with interest to what members have said, and I appreciate the concern that has been expressed that we should not create another tier of appeals. I have detected fairly widespread concerns about the manner in which the ombudsman's office operates in relation to the investigation of complaints. The committee might be minded to pursue that matter further with the ombudsman's office and with the corporate body, which would be the appropriate level of government to deal with such matters.

The Convener: Okay. I am happy to do that.

Rhoda Grant: Does Audit Scotland have a role to play? Could Audit Scotland examine the workings of the ombudsman's office? It might be worth writing to it to ask.

The Convener: Okay. The issue is difficult and complex—the petitioner recognises that—and there are probably differences of opinion on where the petition should go and how far we should take the matter without repeating the cycle all the time. I understand members' concerns about that. Let us try to gather together all the points that have been made. Up to now, there has been neither the will of Government—past or present—nor the will of the Parliament to establish a broader appeals mechanism. Robin Harper made the legitimate point that the issue would require substantial interrogation, as it is not just in this arena that we would expect such appeals to arise. There might be a plethora of things that we would need to address.

Let us gather all the information. We will probably have different views on it, but we need at least to have a more considered reflection on the matter than we can have at the moment.

Robin Harper: There is also the matter of the glass being half full or half empty when we consider the figures. Before the ombudsman was invented, a lot of complaints would have stopped at a lower level and we would have faced a larger number of discontented petitioners. However, 50 per cent of those people should now be either a little bit happier or completely happy, which is a very good thing.

The Convener: Human happiness is an important aspiration.

A series of questions has been raised, which will be reflected in the committee's report. We will gather together the issues and write to the appropriate bodies on them.

I thank Murdo Fraser for his attendance. There is a limit to how often we can allow petitioners to speak directly to petitions, because it is not just about giving them two or three minutes to speak; it is also about having a question-and-answer session. We have had to make a call on that. I understand the frustration that every petitioner must feel about not having a chance to come to the committee. However, in this case there has been a good opportunity to elaborate on some of the issues, and I hope that we can progress the petition. 

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