Draft Order to revise the procedures for complaints about social work

Norton Park
Albion Road
Edinburgh

SDSS member organisations and service users unanimously agreed with the proposal to replace the existing complaint review committees. However, when asked the same question in conjunction with the proposed mechanism, member organisations were less enthusiastic for change. In their view the proposal requires substantial work to ensure that it is fit for purpose, and does not continue to exclude service users.

The existing remit of the SPSO will not address the credibility or accountability issues in social care and support in Scotland. SDSS believes, however, that extending the powers of the Ombudsman, to include social care and support, is not adequate to ensure complaints are handled in a fair, equitable, accessible and timely manner. The Ombudsman may only recommend a local authority takes action to put things right. Service users are sceptical that local authorities will take note of SPSO findings and do so in a timely manner. Social care and support is vital to an individual’s right to live independently . If an individual is in crisis or has a terminal illness, local authority delay will compound the situation. Unless the SPSO has directive powers to enforce its decisions, service users remain doubtful on the effectiveness of the proposals. The power to direct, should extend to when a support package is being stayed [see response in Question 5]. A power to direct, Directive authority achieves the Scottish Government’s objective to secure a process which is fair, equitable, accessible and conducted in a timely manner for service users.

The SPSO’s remit is to make sure that an individual is returned to the position they were in before things went wrong, and that the same thing doesn't happen again to someone else. However, SDSS member organisations do not agree with the Scottish Government that previous SPSO findings, should not be used in reference to another petitioner’s claim(s). SDSS believes this to be in contention with the ethos and good practice of the SPSO Act to ensure “the same thing doesn't happen again to someone else.” We disagree with the Scottish Government, that the mechanism should not be an appeals procedure. No reasons were stated in the consultation as to why a mechanism cannot involve appeals. SDSS supports the view of Inclusion Scotland that for the stage 3 complaints procedure to be compatible with international human rights obligations, including Article 6 of the ECHR, then it needs to be not only independent but able to change a decision, not just recommend that it be reconsidered by the local authority. This would be consistent with the approach on the Welfare Funds (Scotland) Act 2015 which gives the SPSO the powers to:

“… quash the decision and
(a) direct the local authority to reconsider the application to which the decision relates, or
(b) direct the local authority to use its welfare fund to provide
(i) the assistance concerned, or
(ii) any other assistance (being assistance which may be provided by the local authority under section 2).”

Without the right to appeal or precedent disabled people will continue to be disadvantaged as petitioners by the proposal. Therefore, the mechanism should:

1. permit vertical precedent [an appeals procedure].
2. be based on the principles of “stare decisis” [where a lower tier bases its decisions on a ruling of a higher tier in the process] and
3. act “ratio decidendi” by the SPSO affirming or reversing a decision in the lower tiers of the mechanism [the power to overturn a decision from the lower tier of the mechanism].



The rights of service users will be respected and affirmed. Credibility of complaint handling will be improved. Expenditure and petitions to the SPSO would be reduced. SDSS believes without precedent this proposal, the 2007 and 2012 proposals – will achieve no change.

SDSS believes that the SPSO, as a public service ombudsman, should consider the merits of professional judgement. However, SDSS recognises this is a highly complex area. We believe all stakeholders, including DPOs, should be involved in developing how the powers are intended to be used. This power should be reviewed, after implementation, to assess the effectiveness of the policy intention.

Member organisations have stated to us their concerns in relation to resource allocation policies of local authorities that directly impact on the life of people. The policies are directing social care and support staff in their professional judgement, however with a bias i.e. to make saving and as a result reduce the resource allocation to individuals. SDSS believes this goes against the intention of the Act :

• that the right to dignity of the person is to be respected,
• that the person’s right to participate in the life of the community in which the person lives is to be respected.

SDSS recommends the SPSO has the power to investigate resource allocation policies where it is intrinsically linked to professional judgement.

SDSS member organisations agree the SPSO should, in approved circumstances, share relevant information. We believe this power should be extended outside of social care to delegated health organisations and professionals providing social care functions. SDSS strongly recommends that the regulations on information sharing should be designed with disabled people.

SDSS believes the proposal for stage one and two should address the following common issues highlighted by services users and their representative organisations:

General comment on the existing system by service users
A- ‘I had to complain about what the complaints procedures actually are and did.'
Delays:
B- Complained because of mistakes that appeared to result from backlogs of work putting pressure on staff to deal with cases as quickly as possible.
General comment on the existing system by DPOs
Process:
C- Complaints were often not dealt with as complaints
D- Where complaints included more than one issue the social care department would not deal with it as a complaint at all. This means that they are not responded to within a timely period, are not logged [therefore, SDSS believes learning for future quality of services is limited].

Resistance to accepting complaints:
E- Staff were resistant to considering complaints
F- In one case a service user attempted to complain about a social worker who had been rude and unhelpful to them on the phone, they received no acknowledgement or response to the complaint, for five months. The DPO raised the issue with senior staff. Even though the issue was resolved, there was no apology [something SDSS believes is crucial in satisfactory complaint handling].

Standard, depersonalised responses:
G- In many cases we believe that the responses to complaints were too standard, and did not adequately relate to the substance of the complaint. The DPO reported that this felt like the service users are not treated like individuals.
H- The general impression is of an evasive approach to complaints
I- Complexity preventing complaints
J- Delays and lack of acknowledgement of receipt


Resourcing of the complaint process
SDSS agrees the proposals for a “well-publicised, accessible and timely discourse.” However, these values should reinforce stage one and two. We do not agree with the Scottish Government that the process will be “without additional costs.” SDSS member organisations have experience of reasonable adjustments and how complaint mechanisms are under-funded by local authorities in Scotland. SDSS believes a financial impact assessment will assist the Parliament’s decision on the proposed Order. This should include properly resourced organisations that can support service users during a complaint process. Throughout the whole process, an individual’s needs for support should be addressed separately from the organisation being complained about. This will ensure an individual is not hindered making a complaint. Without explicit ring-fenced funding for accessibility, reasonable adjustments and advocacy, in the whole process, the proposed changes will make little or no impact on the lives of disabled people.


Timescales and status of packages in review:
SPSO investigation processes can take a long time, especially if the case is complicated. Social care and support complaints are complex. If a service user is in a period of crisis, with a complaint moving from local authority to SPSO or SPSO back to the local authority, the proposed timescales will be detrimental to the service user. Service users have told us their concerns that the proposals do not state what happens to a social care and support package, when a service user has initiated a complaint. SDSS believes that a support package, should at the very least, be stayed whilst a complaint procedure is initiated. This would be in common with other condensed procedures for benefits and terminal illness, such as DWP process DS1500. SDSS recommends, that timescales be fast tracked and support continues to be provided depending on the needs of the individual.


Appointment of professional decision-maker
Decision-makers are current or previous local authority employees and/or elected officials. Service users have told us their concerns with the impartiality of decision makers. SDSS believes the decision-makers have little independent living training or experience. This has affected decisions based on all the available facts which SDSS believes should be grounded in the values that underpin self-directed support. SDSS recommends that any future decision-maker is required to undertake regular Disability Equality Training (DET).

SPSO stage three procedures and regular review
SDSS believes, as a public body, the SPSO should set up a reference group of DPOs or service users to ensure best practise within all stages of the proposed mechanism. The process should be reviewed annually to best advise the SPSO.

ILF Scotland Complaints and jointly funded packages with a local authority
SDSS understands ILF Scotland are also conducting a review of complaints to ILF Scotland and ultimately routes to the SPSO. We believe the ILF Scotland complaint review should not work in isolation to the Scottish Government consultation. ILF Scotland support packages have shared decision making, and are jointly funded, with local authorities. All complaints should be dealt with consistently, as highlighted above. These changes need to be coproduced with service users and their representative organisations, to ensure changes are fit for purpose.