MACS response to: A consultation on the Investigations Manual of the Ethical Standards Commissioner’s office

Q1 – When a complaint is received by the Commissioner’s office, the complaint is assessed against certain criteria for admissibility. If a complaint is assessed and considered inadmissible, a dismissal letter is prepared setting out the reasons why and sent to the Complainer. Should Councillors and Members also be notified when a complaint against them is dismissed because it has been assessed and considered inadmissible?

No. Although we believe there should be a single appeal on the decision not to investigate afforded to the complainer (with the reasons for dismissal given) to allow them to present any further relevant information; to be considered if they disagree with the decision and reasons given.

Q2 – If so, would a copy of the dismissal letter sent to the Complainer (with contact details redacted in accordance with data privacy protection rules) be sufficient notification?

See above and further comments under Q3.

Q3 – Please provide reasons for your responses to Q1 and Q2

Minimising information being passed to the Councillors/Members will assist with robust compliance of GDPR and the updated regulations. It will also reduce the risk of inadvertent/indirect identification of the complainer given the nature and potential information provided in the initial complaint.

Introducing a one stage appeal process for dismissals may be useful to the complainer and be more transparent and open. The reasons given for not investigating may help frame the complainer’s mind to supply further relevant evidence or reasons. This one step process may also prevent a recurring complaint for the same or similar reasons/issues. It would also eradicate the perception that the complaint is being closed down without due diligence.

Q4 – At times, the Commissioner’s office may receive a complaint which the complainer subsequently requests to withdraw. Should the Commissioner take forward complaints which are withdrawn, if there is a public interest in investigating and reporting on the complaint?

Yes – under certain circumstances detailed below.

Q5 – If so, what considerations should the Commissioner account for when deciding a complaint is in the public interest to investigate and report, even where that complaint has been withdrawn?

• Where the complaint triggers or raises issues of potential concern.
• Where the complaint shows a recurring theme.
• Where progressing could reduce or mitigate future risks.
• Where there may also be legitimate reasons for the complainant withdrawing the complaint (anxiety, pressures from others, fear of repercussions, lack of support and advocacy to progress).

Q6 – Please give reasons for your responses to Q4 and Q5.

Q4 - The Commissioner should only take forward withdraw complaints where it triggers or raises issues of potential concern or in doing so it could reduce or mitigate future risks. If there is a public interest in taking forward the complaint then this should be progressed in terms of transparency and managing risks.

There may also be legitimate reasons for the complainer withdrawing the complain (anxiety, pressures from others, fear of repercussions, lack of support and advocacy) and as such we see benefits in the Commissioner taking forward complaints that have been withdrawn by the complainer, but would be of public interest to investigate further.

Q5 suggestions

Where the complaint triggers or raises issues of potential concern. Where the complaint evidences a recurring theme.

Where progressing could reduce or mitigate future risks.

Where there may also be legitimate reasons for the complainer withdrawing the complaint (anxiety, pressures from others, fear of repercussions, lack of support and advocacy).

Q7 – Investigations take time and require cooperation from the Complainer, Respondent and any witnesses. The Commissioner’s investigative team will contact parties for information to progress with the investigation and will provide an update, currently every 3 months, on the progress of the investigation.

(a)   How often should the investigative team be in touch with parties to update on the progress of investigation?

For serious complaints it should be every 28 days.

For other complaints every six weeks in line with the ombudsman guidelines.

(b)  How much time should the investigative team provide for parties to respond to the investigative team’s requests for documentary or other relevant evidence?

20 working days.

(c)   At times, no response is received despite repeated requests. Where no response is received for a prolonged period of time and after repeated requests for information, should the Commissioner’s office proceed to conclude the investigation without the requested input?

If the information requested is from public bodies then there should be an “order” to comply.

If the awaited information is from the complainer then the investigation team should give adequate notice to the complainer that a decision will be made with the information available and no further information can be submitted at the appeal stage (that isn’t submitted by the decision making deadline.

Q8 – Please given reasons for your responses to Q7(a), (b) and (c)

The suggestion in response to Q7 (a), (b) and (c) is proposed to prevent complaints being unnecessary prolonged and to ensure all relevant information is submitted by the decision deadline.

Q9 – Interviews can be an integral part of the investigative process. The Manual proposes that an interviewee may be contacted in writing by the Investigating Officer in order to confirm any substantive statements shared during the interview or a witness statement prepared from what is discussed at the interview. The interviewee will be invited to respond to the Investigating Officer to confirm or correct the accuracy of such substantive interview statements or witness statements. The interviewee may also be invited to review an interview or witness statement based on the interview, and to sign it to confirm that it is a true reflection of what was said during the interview. Should this proposed approach form a part of the investigative process and are there circumstances in which it should be essential, rather than optional?

Yes - this should be part of the investigation process. We would add that some complainers may require reasonable adjustments including information being provided in various formats. We would also suggest that some complainer’s may need advocacy and support to allow them to be properly represented/involved in the investigation and evidence gathering. The Commissioner should develop a process to facilitate this and not leave it to individual complainers who require this level of support, to ensure a satisfactory outcome.

Q10 – If so, should all other witnesses be provided with a copy of the interview or witness statement?

This would depend on the nature if the complaint and information shared, some of which may be confidential or sensitive. GDPR guideline must be followed including only sharing necessary information with those who need it, not over sharing and preventing the sharing information that may identify anonymised or whistle blowing complaints by direct/indirect association.

Q11 – Please give reasons for your responses to Q9 and Q10.

As well as the reasons given within the above answer, the Commissioner has a role to protect the complainer and to ensure they have enough support and advocacy to be properly engaged with the process. The process needs to be person centred and look for learning and development opportunities from the issues raised.

Meaningful supported involvement will also foster a culture and perception of a fair and transparent process.

Q12 – At the end of an investigation, the Commissioner’s office will produce an investigative report (the Report) setting out the background to a complaint, the investigation, the investigative outcomes and an explanation of the Commissioner’s views as to whether a breach of the Code has taken place. The Manual proposes that all Reports, either breach or no breach, are shared with all parties to a complaint (specifically, the complainer, the respondent and the local authority/public body). Should this proposed approach be taken?

Yes - though some reports will/may need to be redacted and ensure where complainers’ details are withheld and that no information within the report identifies the individual.

The final report should also include a section on “lessons learned” and actions to eliminate/reduce the likelihood of recurrence.

Q13– Please give reasons for your views.

Complaints should not only be seen in the negative, but also as an opportunity for improvement, for learning, and to introduce changes and checks and balances to continuously improve how public servants work and to inform relevant codes of conduct.

Q14 – The Manual proposes a set of proposed timescales and targets for each stage of complaint handling. Should these proposed timescales and targets be adopted or do you feel that others are more appropriate for consideration?

In part. Initial 1-3 months targets need to be more stretched.

Q15– Please give reasons for your views.

Complaints that are resolved quickly normally have better outcomes, quicker remedial actions introduced and better complainer satisfaction than prolonged investigations. The first 3 months in the timeline of a complaint is critical. Reducing timelines for complaint investigation and resolution will also reduce the stress and anxiety of the complainant, and focus the work load and timeline of the investigators. It will also reduce the perception that the complainer’s concerns are lower priority.

Low level complaints to organisations have a much higher level of significance to the complainer as it is more personal. It can take a lot to complain and having a prolonged resolution is not effective.

Q16 – Are there any other issues relating to Councillors / Members’ complaints handling processes which you wish to raise?

Case studies should be used to inform the review process – good and bad. It may be beneficial to have a run through (scenario) of the revised process with previous complainants (volunteers) to check if the new process meets their expectations. This will also demonstrate a willingness to engage, learn and change.

The second stage could be a run through with Councillors and Members to identify pinch points and areas of concern.

Complaints about MSPs

Q17 – The Manual proposes a set of proposed timescales and targets for each stage of complaint handling. Should these proposed timescales and targets be adopted or do you feel that others are more appropriate for consideration?

The timescales and targets are not stretched enough, particularly the 1-3 month targets. The KPIs should be more ambitious.

Q18– Please give reasons for your views.

More timely management of complaints improves the process for the complainer and focusses/prioritises the workload of the investigation team. Tighter timeframes = more focus.

Prolonged complaints add to the investigation teams workload (reviews, update briefings) and adds to the stress, anxiety and satisfaction levels of the complainer.

Also, the complaints may uncover issues or risks to the organisation and the sooner these are identified the sooner mitigation and contingency measures can be introduced to prevent reputational damage and instil confidence.

Q19 – Are there any other issues relating to MSP complaints handling processes which you wish to raise?

MSPs (and members) also need support and reassurance during the complaint and investigations process. They should also receive regular updates and not prolonging complaints will also alleviate their stress and anxiety and prevent “it hanging over them” – We are all human!

Q20 – Are there any other issues relating to the Manual you wish to raise?

The internal and external sections of the manual need to be translated into plain English and available in various formats including easy read, braille, etc.