FORMAL RESPONSE

Service Complaints Commissioner’s Annual Report 2011 – Ministry of Defence response to the Report and to the new recommendations

In her 2011 Annual Report, the Service Complaints Commissioner (SCC) has commented on MOD’s progress against the four new three-year goals and 20 new recommendations that she set in last year’s Report. Her comments reflect not only her experience of the complaints system in operation during 2011, but also the MOD’s formal response to her 2010 Annual Report (published in July 2011) and an update sent to her in January 2012 as was anticipated in that formal response.

During 2011, a major focus of effort by MOD and the Services has been to undertake a review of the complaints process. To do this we have built and maintained a body of evidence from all complaints raised during 2011. Analysis of this evidence, which is still in hand, will be a key plank in assessing whether the Services can achieve the four new goals by 2014.

The SCC has recognised in this year’s Report the work that MOD and the single Services have done as part of the review of the complaints process, some of the changes that this work has already brought about and the fact that it has yet to be completed. The SCC expresses her concern that the review is not fundamental. In taking the review forward, we have been clear on the need to understand how the system was designed to be operated, how it is in reality being implemented by the single Services, and the effect that is having on the ability of the system to be fair, effective and efficient. This way we will be able to understand whether the SCC was correct to conclude in her 2010 Report that the system was “over-engineered” and is one in which delay is “inherent”. We are taking account in that work of the goals and recommendations made by the SCC in previous Reports (where these still have relevance and have not for example been overtaken in some way), and have for the first time gathered information about the handling of anonymised cases as well gathering numerical data. The aim is to give us evidence of where the system may be failing, so that where necessary we can determine our options for improving it. It remains our firm intention to consider as part of the concluding phase of the review the SCC’s recommendations for her role as set out in her 2010 Annual Report. We shall also consider those recommendations from the 2011 Annual Report which fall within the scope of the review. We will update the SCC on the outcome of the review in time to inform her next Annual Report.

Proper consideration must, of course, be given to the resource implications of any changes we propose. Notwithstanding the SCC’s recommendation (10.4) that “Service chiefs should resist cutting staffing levels in their complaints secretariats” noting that the system will be “at risk if resources [are] reduced”, our approach will be to deliver a fair and effective complaints process as resource-efficiently as possible. No part of the Defence budget can be exempt from the current budgetary pressures.

Aside from work on the ongoing Review, the Services have also engaged in further continuous improvement activity throughout 2011. For example, the Royal Navy undertook a review of casework resources and resilience at level 3 of the complaints process and the Army established a bullying and harassment help line. In her annual report the SCC has acknowledged the reforms which have been made to the way in which complaints are being managed and also the further changes which are planned for 2012, these include the implementation of the fee-earning Harassment Investigation Officer cadre and the brigading of specialist bullying, harassment and discrimination investigation and mediation capability within the Royal Navy. The RAF will also be broadening their Service Complaints Governance Board into a fully fledged Justice Board, and embedding a legal cell into their personnel business areas to improve the accessibility of legal advisers. The SCC has suggested that these improvements ‘give a glimpse of how the system should be operating’. These changes have already borne fruit both in terms of the quality and pace of decision making, and the Services are clear that they should be given the opportunity to bed in and deliver improvement.

As promised in our response to the SCC’s Report for 2010, half of the 20 new recommendations in that Reportare now being considered as part of the review of the Service complaints process. There were five recommendations that were otherwise left to be addressed:

  • The SCC’s office should have unlimited read-only access to the JPA complaints module, and all associated complaints files (recommendation 10.1);
  • The proposal for the establishment of a cadre of HIOs should be implemented without further delay (recommendation 10.2);
  • Service complaints from or about Service police should have two independent members on the SCP, one of whom should have expertise in police professional standards (recommendation 10.12);
  • The SCC’s role in following up on whether lessons have been learned by the Services should be formalised (recommendation 10.15);
  • The SCC’s office should be properly resourced and resources should be provided in a timely manner, SCC staff should automatically be recruited from across the wider Civil Service and not just from the MOD (recommendation 10.16).

Of these five recommendations, the SCC assesses in her 2011 Report the “delivery” status of all but 10.2 as “red”. Progress has been made in addressing 10.1, 10.15 and 10.16, whilst Royal Assent was received on the Armed Forces Act 2011 in November 2011 which provides the basis for us to progress recommendation 10.12. During 2011 we have been exploring in more detail with the SCC’s office the requirement for JPA access as covered in recommendation 10.1. This has enabled us to do preparatory work on security and data protection issues, so that we are in a strong position to act quickly when the review of the complaints process and the SCC’s role in it is complete. Similarly, we have worked with the Services over the past year to define a centralised lessons learned process, which we are currently finalising. On recommendation 10.16, a Civil Service-wide restriction on external recruitment in all but exceptional circumstances has been in place since June 2010. Again, this is something from which MOD judges the SCC cannot be exempt. Nevertheless, requests from the SCC to advertise her posts in 2011 across the Civil Service have all been agreed.

Comment on recommendations made in the 2011 Annual Report

The SCC has made nine new recommendations this year. Comments on them are given individually below. It is important to state that our primary focus remains at present the completion of the review of the complaints process, and any work that does not bear on that directly will be progressed only once the review is complete.

Recommendation 11.1 – I recommend that theMinistry of Defence (MOD), Defence Medical Services(DMS) and Services consider implementing a system forcomplaints about medical treatment similar to thatadopted for Service complaints about redundancy.This could be reviewed as part of the Review intohow to improve the Service complaints system, whichis still underway.

The SCC acknowledges in her Report that the Surgeon General has ordered a review of the medical complaints process across the Defence Medical Services. We will work with them to see what experience from the redundancy appeals process might benefit that work.

Recommendation 11.2 – Now the Services have had ayear to embed recording of Service complaints on JointPersonnel Administration (JPA) system, I recommendthat they provide statistics for Service complaints bygender for 2011 and beyond.

JPA has this capability, and as usual we will work with the SCC during the coming year to formulate her requirement for data for her next Annual Report.

Recommendation 11.3 – I recommend that the reportof the second audit of JPA, currently being undertakenat my request by Defence Internal Audit (DIA), beconsidered by the Service Personnel Board,and its subcommittees, and any management actionagreed in response to the audit’s findings, should beimplemented as part of the Review of the Servicecomplaints system.

Recommendation 11.4 – I recommend that therecording of diversity complaints be reviewed also

as part of management response to the DIA audit ofJPA so that Ministers, Service Chiefs, Parliament, theEqualities and Human Rights Commission and I canhave full confidence in the information reported.

We await the final report from the DIA. Management actions based on the DIA’s findings will be considered fully as they were with the first DIA report in 2009, and appropriate action taken in consultation with the SCC, the Service Personnel and Veterans Agency (which is responsible for JPA) and with the single Services.

Recommendation 11.5 – I recommend that the role ofthe Assisting Officer (AO) be reviewed and clarified aspart of the action following the Review of the Servicecomplaints system. This review should consider thecriteria for selection being used by the Services and thepossibility of better guidance and/or training.

Assisting Officers are not a formed body of individuals on standby to support those who are considering making, or are in the process of, a Service complaint. They are volunteers, and as individuals may be approached by a Service person to offer them practical advice and assistance as and when required. We will consider fully how we might further develop the existing guidance for those who are approached to be an assisting officer, based on lessons learned from both good and bad practice observed since the current complaints system was introduced in 2008.

Recommendation 11.6 – I recommend that, if the SCCretains discretion to refer, the rules about notificationof a complaint be amended to include notification tothe SCC or agreement be given to stop the clock for theperiod of time the SCC has taken to make theseenquiries.

We will be considering the impact of lapsed time during the passage of a Service complaint as part of our review, along with the role of the SCC. We will consider this recommendation in the context of that work.

Recommendation 11.7 – Given that Service personneldo not have the right to make a claim to an

Employment Tribunal (ET) about unfair selection forredundancy, and in the light of the provisions in theArmed Forces Act 2011 for fully independent memberService Complaint Panels (SCPs), I recommend that theuse of Independent members for redundancy-relatedService complaints should be considered by the Reviewas a matter of urgency. I also recommend that theServices consider the option of having a Defence SCPfor redundancy-related Service complaints.

The redundancy appeals processes instigated by the Services have been extremely effective in handling successfully queries and complaints resulting from the notifications of redundancy in tranche 1 of the programme. To date, only 5 individuals who have been unsuccessful in their appeal against selection for redundancy have gone on to raise a Service complaint (of 2850 redundancy notifications made and 198 appeals raised subsequently). The Services have the flexibility to use SCPs for such complaints and, where considered necessary, to use independent members on those Panels. We will consider the SCC’s recommendation for the use of independent members, and that we consider having a Defence SCP, in the light of our experience to date.

Recommendation 11.8 – I recommend that theproposal to reduce delay in the handling of complaintsabout policy in relation to pay and allowances, putforward, in 2011, by the Service Personnel and Veterans Agency (SPVA) be considered as part of the Review andwith expedition.

The review is considering the relationship between special-to-type complaints processes and the Service complaints system. The SPVA proposal is part of that work, as is consideration of the SCC’s recommendation in her 2010 Annual Report that her role become that of an ombudsman, and that this new role should also encompass special to type complaints processes (recommendation 10.20).

Recommendation 11.9 – I recommend that the MODshould undertake some further analysis and work to tryto find out the reasons for the higher levels of complaintmaking in Phase 2 establishments; and that the RTSquestionnaire includes a question on levels ofawareness of the SCC.

We acknowledge the concern the SCC raises. We will take forward the analysis she proposes as part of our ongoing work to understand better how the complaints process is working. We will explore the scope to revise the Recruit Trainee Survey to cover awareness of the SCC.