Staff guidance for handling complaints
2. General complaints principles
3. Organisational Structure – Internal consideration
6. Financial Redress or Compensation
7. Financial Redress in Practice
8. Continual and Vexatious Complainants
11. Open Government Code of Practice
12. Dealing with Ministerial/MP and Treat Official Correspondence
13. External Consideration The Adjudicators Office
14. The Parliamentary Commissioner for Administration
STAFF GUIDANCE FOR HANDLING COMPLAINTS
Scope of this guidance
This is The Insolvency Services policy and procedure for handling and learning lessons from complaints, including procedures to follow when dealing with the Adjudicators Office and the Parliamentary Commissioner for Administration (“The Ombudsman”). It is mainly relevant to Official Receivers, Redundancy Payments Office Managers, HQ Section Heads, Regional Managers and HQ Directors. However all staff should familiarise themselves with the general procedures detailed on complaints handling.
You should remember that complaints are not necessarily the result of a staff member doing something wrong. Most complaints arise because of inadequate systems; lack of training; poor communications; or misunderstandings about our processes and procedures.
Release of information: Open Government Code of Practice and Freedom of Information
All information in this guidance may be released on request because no exemptions under the Governments Code of Practice apply. This guidance will also be included in The Services Freedom of Information publication scheme and will therefore be available to the general public via our website.
The importance of good complaints handling system
As a current holder of the Charter Mark standard The Service is committed to providing a professional, efficient, courteous and helpful service to all our users. Good complaint handling and monitoring is a vital part of this. Through an efficient complaints handling process we can:
learn lessons about the quality of service provided and how to improve it;
improve user satisfaction by dealing with complaints fairly thus gaining their greater co-operation.
All staff need to deal with complaints effectively and efficiently by following the procedures set out in this guidance.
2. General complaints principles [back to top]
Access
If someone is dissatisfied we need to give them every opportunity to tell us. This means we must make our complaints system publicly visible, easily accessible and simple to use. We must recognise that there are organisational and social barriers that might discourage our users from complaining.
Our leaflet Complaints Procedure: Information on making a complaint tells our users:
how they can complain;
the standards for the response they can expect from us; and
where they can further pursue their complaint once we have fully dealt with it.
The Adjudicators Office leaflet AO6 How to complain about The Insolvency Service and the Ombudsmans leaflet should be made available to users on request. These leaflets are also available via our website, along with a complaints form that can be completed and submitted to The Service on-line.
Receiving a complaint
The Service receives complaints in a number of ways, either in writing (letter, fax or e-mail) or orally (in person or by telephone). Complaints made orally are often informal and potentially easily dealt with, but this is not always the case. Many oral complaints can be about complex insolvency issues and might be better put in writing. This will enable us to fully understand the complaint and satisfactorily address all of the points raised. You have discretion in deciding whether it is appropriate to request that a complainant puts their complaint in writing. However you should not discourage oral complainants unnecessarily. Commonsense and experience should be used rather than any set criteria.
Identifying complaints
Complaints are usually easily identified, however should you be in doubt as to whether any form of communication constitutes a complaint, you should consider the following definition of a complaint:
“Any expression of dissatisfaction with the service provided needing a response.”
If after considering this definition you are still unsure whether the communication is a complaint you should treat it as one. Getting as much feedback and information from our users as we can, lets us build up a picture of our performance and helps us find out where our weaknesses are. Even if it initially appears that nothing has gone wrong, we need to examine the complaint thoroughly and provide a full response to each of the complainants concerns.
Complaint handling
Good complaint handling is fundamental to our success in meeting the strategic objective of improving our service, and co-operating with our users. Our objective is to satisfy complainants that we have taken their complaint seriously by investigating it thoroughly, and by giving them a complete and s
peedy response. Prompt and clear handling of the complaint shows we are prepared to listen, even though the complainant may not always get the response they want.
Taking an understanding and positive approach when you first contact the complainant may help you resolve things quickly and amicably. Try looking at the situation from the complainants point of view, and consider the impact our actions may have had on them. Saying that you recognise how they must feel does not hurt, even if you are fairly sure that our actions will turn out to have been appropriate. Showing empathy is not always easy, particularly if the complainant is angry. Try and defuse the situation by staying calm and letting them say their piece without interruption. However, do not take any abuse or threats. Be firm and tell them that you will end the meeting, telephone call or other communication if they continue to be abusive or threatening.
The following points are key in handling complaints successfully:
having a clear organisational structure for handling complaints;
taking a positive approach towards dealing with complaints;
acknowledging the complaint;
investigate the complaint fairly on the basis of facts;
monitoring progress;
responding to the complaint; and
ultimately put things right if required.
Published Standards
Our complaints procedure leaflet outlines our commitment of responding to a complaint within 10 working days of receiving it. Where this is not possible, we will send an interim response within 5 working days, explaining why there is a delay and indicating when we expect to be able to provide a full response. You should always consider an interim response if you have any doubts about being able to provide a substantive response within 10 days.
3. Organisational structure [back to top]
Following the appointment of the Adjudicator to investigate complaints which we are unable to resolve to a complainants satisfaction, The Service now operates a two tier internal complaints handling system.
Internal consideration
Tier 1 Official Receivers, RPO Managers or HQ Section Heads.
Our complaints leaflet advises our users to initially address any complaint they may have to either the staff member concerned, or the relevant OR, RPOM or HQ Section Head. This approach encourages staff to take ownership of complaints received about them or their work, and should enable us to provide a better and speedier response to the complaint. When responding to the complaint at this initial level you should follow the complaints handling guidance provided below.
Your response should also include contact details for the relevant Regional Manager or HQ Director, whom the complainant can approach should they remain dissatisfied with your initial response. This reinforces the structure of our internal complaints handling system and removes any possible confusion about what the complainant should do next if they remain dissatisfied.
Tier 2 Regional Manager or Headquarters Director
Should a complainant remain dissatisfied after their initial complaint has been responded to at the first tier of our internal complaints handling system, they can refer their complaint to the relevant Regional Manager or HQ Director.
The RM or HQ Director will then need to investigate and addresses the reasons for the complainants continued dissatisfaction. The RM or HQ Director will usually require background information from the person who initially investigated and responded to the complaint to assist them in their investigation. When requesting this background information RMs/HQ Directors should have regard for the information that will be required by the Adjudicator should the complaint ultimately be referred to them for investigation.
When responding to complainants at this second internal tier RMs/HQ Directors should always advise the complainant that they have recourse to either the Adjudicators Office or the Parliamentary Commissioner for Administration (the Ombudsman) should they remain dissatisfied with the subsequent response at the second tier. You should also enclose a copy of the Adjudicators Office leaflet AO6 “How to complain about the Insolvency Service”.
4. Misdirected Complaints [back to top]
Often no matter how clear we set out our complaints handling system, complainants will often try and bypass this system by sending an initial complaint to the highest level within The Service, possibly the IG/ACE. Or they may even send an initial complaint direct to the Adjudicators Office. RMs and HQ Directors will therefore need to satisfy themselves that the office/section concerned has, in the first instance, had the opportunity to address the complaint and that it has been properly recorded on their complaints register prior to becoming involved. One of the aspects that the Adjudicators Office will look into if they investigate a complaint will be whether The Service has dealt with it in accordance with its own published guidance. If we have not adhered to our own internal guidance we will be open to criticism should the Adjudicator investigate the complaint.
Complaints sent directly to the Adjudicator which The Service has not had the chance to address are called assistance cases. Assistance cases are covered in more detail at Section 13 of this guidance.
5. Acting on complaints [back to top]
When things go wrong and a complaint is received, we need to:
establish exactly what the problem is;
find out what the complainant wants us to do about it;
resolve it as quickly and effectively as possible;
apologise where appropriate, explaining why we are apologising;
consider whether compensation is appropriate; and
analyse what went wrong, why, and what lessons we can learn from the complaint.
We must try looking at complaints from the complainants point of view. We need to accept immediately when there is a problem and see what we can do about it even if all we can do
is provide a clearer explanation or apologise for any misunderstanding.
Looking into the complaint
Complaints are normally about one or more of the following:
our administration;
our procedures and how we applied them;
our policies;
the conduct or competence of a staff member.
We investigate all the complaints we receive to see if they are justified. We must ensure that each complaint is given a fair and impartial investigation, which avoids any bias in favour of a member of staff or The Service in general. Our investigation should be thorough: finding out the relevant facts; talking to people involved on both sides of the complaint; and verifying explanations where possible.
Responding to the complaint
Responding to a complainant at both tiers should follow an exhaustive and thorough investigation. If our response is not comprehensive enough, a complaint could escalate into a more serious complaint. A full, prompt and clearly explained response, detailing how we carried out the investigation, what we found and, if the complaint is upheld, what we are doing to remedy the situation gives complainants confidence that we took their complaint seriously and handled it well. In general, our response should always:
clarify or restate the substance of the complaint;
answer all the points of concern;
use leaflets and published guidance material where possible (these are all accredited by the Plain Language Commission, and are often more comprehensive than a letter);
be factually correct;
avoid jargon;
provide a contact name and telephone number; and
include details of who they can contact should they remain dissatisfied.
It is likely that most responses will be in writing, but responding to the complaint by telephone can be quicker and more effective. This may still require a follow up letter, confirming any understanding reached. Arranging a meeting with the complainant shows that we take them seriously and are willing to devote time to resolving their complaint.
A Positive Approach
If we have made a mistake, we must accept it and say so. Adopting a defensive attitude is likely to increase the complainants frustration making it more difficult for you to resolve what might be a straightforward misunderstanding. Accepting and learning from our mistakes is a positive quality. You need to adopt a positive approach and listen closely to the complainants point of view: make sure you have understood the complaint, or the different points of it. Do not assume that because one part, perhaps the key element of the complaint, appears misdirected or unjustified, that other elements are also unjustified.
Redress
Having a good complaints handling system allows us to:
put things right for the complainant; and
improve our processes and procedures by using information we gain via complaints.
The usual way of putting things right for the complainant is providing redress. Redress can consist of any or more of the following:
an apology;
an explanation;
an assurance that we will not make the same mistake again;
details of the action we have taken in putting things right; and
in certain cases financial redress.
6. Financial Redress or Compensation [back to top]
Many people who complain are not looking for financial compensation. What they usually want is an explanation for why something went wrong, an apology and some reassurance that something will be done so that the same mistake wont happen to other people. There are occasions when we should consider financial redress.
These are:
Reimbursement of actual costs/expenditure incurred as a direct result of our mistakes or delay;
Compensation for worry and distress caused to a complainant as a direct result of a mistake or delay we make; or
Further mistakes or delays in dealing with an actual complaint.
Claiming back costs incurred as a direct result of our mistakes
Where we make a mistake or cause an unreasonable delay, complainants may be entitled to claim any additional costs they incurred as a direct result of the mistake or delay. The compensation due in any case depends on the nature of the mistake, the circumstances in which the mistake was made and the actual loss or costs incurred as a direct consequence of the mistake. Each claim needs to be considered on its own merits.
Compensating for worry and distress caused directly by The Insolvency Service
Unfortunately the nature of our business sometimes leads to times of stress and worry for our users, over which we have no control. However we recognise that there may be occasions where our direct mistakes and delays cause inconvenience and irritation to our users. If our actions have adversely affected a complainant we have the discretion to pay an amount of compensation, to acknowledge and apologise for the way we treated the complainant. These payments, which again are not intended to put a value on the distress and worry they may have suffered will range from between £25 to £250.
Further mistakes or delays in dealing with a complaint
If we handle a complaint badly or take an unreasonable amount of time to deal with it, we may also make a compensatory payment, on top of any reasonable costs. Again these payments will range from between £25 to £250.
7. Financial Redress in Practice [back to top]
Considering reimbursing costs/expenses incurred as a direct result of our mistakes
On occasions our actions or inactions will result in a complainant suffering actu
al financial loss (eg the incorrect sale of third party goods in insolvency proceedings). We will consider all complaints seeking financial reimbursement for actual losses on their individual merits. If you consider a complainant is justified in seeking reimbursement for costs incurred as a direct result of our mistakes or errors you should refer the complaint and your observations to HQ Technical Section. HQ Technical Section will then make a final decision on whether The Service should reimburse the loss suffered.
Often reimbursing the actual losses incurred as a result of our errors or mistakes will satisfy the complainant. However the RM/HQ Director will need to consider whether the stress and worry caused by this mistake also merits a consolatory payment. If so the RM/HQ Director should suggest a suitable level of remuneration in their communication with Technical Section.
The contents of Management Notice 14 of 1999 still apply to cases where actual losses have been incurred by a complainant.
Compensation for worry and distress caused directly by our mistake and further mistakes or delays in dealing with a complaint
When considering a complaint at the 2nd tier Regional Managers and HQ Directors now have the delegated authority to decide whether to make a compensatory payment to a complainant in respect of either:
worry or distress caused as a direct result of a mistake or delay caused by The Insolvency Service; or
further mistakes or delays in dealing with the actual complaint.
Should an RM/HQ Director deem that a compensatory payment is appropriate in the above circumstances, it will be borne by The Services Fruitless Payments budget. Whilst this budget remains under HQ Technical Sections control RMs and Directors will not need to seek Technical Sections approval on the validity or level (within the prescribed range) of the payment.
Financial Redress Payments
RMs/HQ Directors or Technical Section should minute Finance & Planning Section providing them with brief details of the complaint and the reasons why you have agreed to make the payment. A copy of the letter to the complainant detailing the decision to make such a payment should also be included. This minute should be certified for payment against the relevant ledger head and cost centre code. Finance will process the payment and send the cheque directly to the complainant under separate cover.
Negotiated Financial Redress
HQ Technical Section may in some certain cases where actual financial loss has occurred look to negotiate a suitable settlement with the complainant.
RMs/Directors when considering a compensatory payment for worry and distress caused, or for poor complaints handling should not similarly look to negotiate a value of the compensatory payment with the complainant. The complainant should simply be informed that you intend to make a compensatory payment of a fixed amount, including details of why you are making the payment.
Misuse of Financial Redress Option
Where we have made a mistake an apology will usually satisfy most complainants, as long as it is made in a genuine and timely manner. You should not look to make compensatory payments to try and stop a complainant from referring their complaint to one of the external avenues available. Where we are at fault the Adjudicator will not uphold a complaint against The Service if we have adhered to our internal guidance and offered an appropriate level of redress based on the facts of the complaint.
Note: The Adjudicators Office produces an annual report, including summaries of some of the complaints that they have investigated. These might provide a useful guide for RMs/Directors when considering whether a consolatory payment is appropriate. You can view these annual reports on the Adjudicators website at https://www.adjudicatorsoffice.gov.uk
8. Continual and vexatious complainants [back to top]
Some complainants are not satisfied, even after thorough, impartial and exhaustive investigations by staff at several levels within the organisation. In these cases, once we have exhausted all avenues of redress within the two-tier internal process, we must tell the complainant that their remedy may lie: either with the courts or with an external adjudication system – in our case, the Adjudicators Office or The Ombudsman.
Some complainants persist in repeating their complaints even after we have addressed them as fully as possible. We must first ensure that the complainant has no new evidence. If they have nothing new, whoever receives the complaint needs to be firm and to let them know that we will not enter into any further correspondence or telephone conversations on the matter. If we decide to take such measures with a complainant, we need to inform anyone else whom the complainant is likely to contact of the action being taken.
9. Recording Complaints [back to top]
We record complaints so that we can build a picture of our weaknesses and know where we are going wrong. This, in turn, shows us how we can put things right by improving systems, processes, leaflets and guidance material. We can only do this if the recording process is consistent, and we record all complaints however trivial and however they are made, orally or in writing, and treat them all equally. Copies of the recording categories and our complaints return can be found on the Secretariats intranet site or by using the links below.
Complaints recording categories
Complaints Return
Using the information to implement change
Complaints make us act in three ways:
taking action to put things right for the complainant.
doing something to stop the same thing happening again.
even if it was not justified, there is still something we can learn from it.
Collecting and analysing complaints information is pointless if we fail to act. Once we have identified the problem, the root cause needs establishing and eliminating. Motivating staff depends on them seeing real evidence of improvements and inspiring continued improvement. Staff can always make immedia
te changes, if these are obvious. But we need full understanding including establishing the cause of some problems, before making potentially expensive changes.
HQ Secretariat analyses the entire complaints register. This includes: looking for complaint trends; issuing guidance; revising the complaints procedure; and, publicising the system.
OROS monitor complaints received at OR offices. They aim to identify any local, regional or national trends and develop strategies for implementing changes within any particular office, region or Service-wide if required.
Publishing complaints information
Complaints data will be published on The Services website and in The Services Annual Report and Accounts. Posters identifying changes or business improvements made as a result of addressing certain complaints will be displayed in office reception areas.
10. Data Protection Act [back to top]
Individuals can get access to personal data about themselves under the Data Protection Act 1998. Anyone, including non-UK residents, can make a request for information either as a private individual or on behalf of an organisation. The Act requires The Service to confirm or deny whether we hold the information asked for and provide access to it within 40 calendar days. This includes complaints correspondence we hold. There are a number of exemptions to this – you should go to the information pages on the Data Protection Act contained in the Technical Section area of the Intranet. Alternatively you can contact Technical Section.
Technical Section deals with all complaints about requests for information under the Data Protection Act in the same way as any other complaint.
11. Open Government Code of Practice [back to top]
The Open Government Code of Practice on Access to Government Information (otherwise known as “the Code”), provides a way for the public to request information from Government Departments. (The Freedom of Information Act 2000 replaces the Open Government Code of Practice when it comes fully into force in January 2005.)
Part II of the Code sets out the specific circumstances in which information may be exempt from disclosure. If you need help in dealing with requests for information under the Code or help in interpreting the exemptions set out in the Part II of the Code you should contact David Swarts in the HQ Secretariat.
12. Dealing with Ministerial, MP and Treat Official Correspondence [back to top]
Most of the above types of correspondence voice an opinion and seek to change or influence Government policy. It is not practicable for Ministers to reply to each piece of correspondence, so Ministers Private Offices categorise letters into two types Ministerial or Treat Officially correspondence.
Ministerial correspondence
Ministerial correspondence consists of MPs letters to Ministers on behalf of their constituents or about a matter in which they have a direct interest or concern. Complaints contained in Ministerial Correspondence requiring a response from The Service are sent to the Services Senior Management Support Team (SMST) via the Competition, Consumers and Markets Correspondence Unit (CCMCU). The complaint case papers are then allocated to Technical Section who will draft a suitable response on behalf of the IG. This draft response will then be returned to the CCMCU for issue. When an MP writes to the Minister, the draft response is addressed to the MP from the Minister. Sometimes an MP writes direct to one of our local offices without involving the SMST or the CCMCU. In this case, the local office should reply direct to the MP.
Treat Official cases
Treat Official correspondence is when members of the public write directly to Ministers or the Prime Minister. All Treat Official letters containing complaints about The Service are forwarded by the SMST to the IG. Technical Section drafts a suitable response on behalf of the IG sending it directly to the complainant.
13. External consideration – The Adjudicators Office [back to top]
Background
On 1 April 2024 we appointed the Adjudicators Office (AO) to investigate complaints we cannot resolve ourselves. The current Adjudicator is Dame Barbara Mills QC who was appointed in April 1999. The AO acts as a fair and unbiased referee when people feel they have been badly treated. The AO looks at both sides of a complaint and, if it is upheld, makes recommendations about putting things right. The AO also acts as Adjudicator for the Inland Revenue, including the Valuation Office Agency, HM Customs and Excise and the Public Guardianship Office.
The AO is not part of The Services management structure and is not subject to Departmental direction. The AOs staff consists of secondees from The Service, the Inland Revenue and HM Customs and Excise. Staff work on a mix of departmental cases.
The arrangements and standards under which the AO provides their adjudication service are set out in a Service Level Agreement. A copy of the agreement is on the intranet.
Leaflet AO6 How to complain about The Insolvency Service”
The AO leaflet AO6 “How to complain about The Insolvency Service” explains how people can complain. The information is available in large print, Braille and on audiocassette. Complainants can get copies from the Adjudicators Office and from our offices upon request. Our Complaints leaflet “Complaints procedure: Information on making a complaint” also explains how to refer complaints to the AO.
Complaints the AO can deal with
The Adjudicator looks at the way we have handled peoples affairs. For instance she looks at complaints about:
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excessive delay;
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errors;
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discourtesy; and
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the way we have used our discretion,
Time Limits
The Adjudicator will not usually take on a case more than six
months after it has been reviewed by the Regional Manager or HQ Director.
Complaints the AO cannot deal with
The Adjudicator does not deal with appeals on matters where independent tribunals – such as the Insolvency Practitioners Tribunal or an Employment Tribunal – exist for resolving disagreements.
The AO will not consider:
decisions or omissions made by an insolvency practitioner and by the Official Receiver acting as Trustee or Liquidator;
matters relating to a prosecution/disqualification brought by The Service until the completion of all court proceedings;
matters which the courts have already considered or could be raised on appeal;
complaints which the Ombudsman (Parliamentary Commissioner for Administration), has investigated, however complainants can ask the Ombudsman to look at complaints which the Adjudicator has investigated; or
matters relating to the professional conduct of an insolvency practitioner not authorised by the Secretary of State including the disciplinary procedures of the Recognised Professional Body.
Assistance Cases
“Assistance Cases” are complaints where the person complains directly to the AO without first giving us a chance to address the complaint. When the AO get a complaint direct they will either advise the complainant to get in touch with us, or forward the complaint to us to take up directly with the complainant. If the AO decide that they cannot look at a complaint, they will let the complainant know why. The Secretariat will get details of cases the AO receive to check if we have already considered the complaint. If we have not already had the opportunity to resolve the complaint we will ask the appropriate Official Receiver, Redundancy Payments Office or HQ Section Head to consider the case at the first tier or the appropriate Regional Manager or HQ Director at the second tier. A copy of our response at either tier should be sent to the AO. If the complainant remains dissatisfied, then they have recourse to either the second internal tier or the Adjudicators Office as appropriate.
Investigation Cases
The AO will only review a case after the RM/HQ Director has considered it, and the person is still not satisfied with that reply.
If the AO decide to investigate a complaint, they will send a copy of the complaint to the relevant RM/HQ Director. The RM/HQ Director should provide a full report within 28 days, explaining The Services position, together with all relevant original papers. In complicated cases, the AO often produce a factual summary of events, and where necessary will check the facts with the Service and the complainant. The AO will try and resolve the complaint by mediation <LINK> between the complainant and The Service.
(Note: Sensitive material. The AO are entitled to have access to all records held by The Service to assist them in investigating complaints received. However The Service has retained the discretionary right to withhold documents, the disclosure of which could cause serious harm to the public interest. If you are in any doubt as to whether certain documents fall within this category, you should consult Technical Section for guidance.)
Reports to the Adjudicators Office
The AO have no precise rules about the form of the report. But the report must be a consolidated report on behalf of The Service as a whole. It should ensure the views of any of The Services staff commented on by name are adequately and appropriately covered.
All investigation reports to the AO should contain the following information:
a person to contact;
a schedule of events with appropriate commentary on whether we took the correct action or whether we made a mistake;
a background note describing The Services processes relating to the complaint. (Sending copies of the relevant guidance will be helpful.);
an explanation of all technical terms the report uses;
a summary identifying separate elements of the complaint;
a summary of any mistakes that you have found and the reasons for them;
comments, and explanations where possible, on each element of the complaint and any mistakes made. Where you do not accept a complaint is justified, say so. Explanations where documents or records are not available (eg we do not normally keep records of this type of actions or events or we have lost or destroyed these papers);
your view on how the complaint might be settled. Not solely a new offer of compensation;
all files;
learning points;
any action being taken on the complaint;
management comment e.g. an explanation of why the Regional Manager/HQ Director now takes a particular view.
In all cases the reports should be “signed off” by or on behalf of the RM/HQ Director.
Initially all reports required by the AO will be requested through the HQ Secretariat, to ensure that the reports fully meet the requirements of the AO.
For the first year of the appointment the AO will provide RMs/HQ Directors with feedback on the quality of reports submitted to their office. After this initial period you can request feedback by attaching a copy of their feedback report form to your investigation report.
Outcome of the investigation
The AO can resolve complaints in one of two ways: by issuing a formal recommendation letter setting out the Adjudicators decision; or by mediating a settlement which both the complainant and The Service accept. The AOs policy is to try and resolve all complaints by mediation. If mediation cannot settle a complaint, the Adjudicator will formally recommend what needs doing to put matter right, or say that The Service has properly handled the complainants affairs. The Adjudicator makes the recommendation in writing to both the Regional Manager/HQ Director and the complainant. The recommendation might ask us to:
pay compensation;
look again at someones affairs;
recognise our mistakes and apologise; and/or
improve our procedures so that similar mistakes do not happen again.
Staff who are invited to an interview with the Adjudicator
The AO issues the leaflet AO4 Meetings with the Adjudicators Office” for staff who are invited to an interview with the Adjudicator or her staff. This leaflet has been prepared for Inland Revenue and HM Customs and Excise staff but the content is relevant to staff in The Service.
These are simply interviews that enable the Adjudicator to find out more about a case they are investigating by speaking directly to those involved.
When we appointed the AO we undertook to make sure they had access to all information they need to review a complaint. This is accomplished in most instances by sending a report to the AO and by us making our papers available for them to review. But there are occasions when they need to find out more about what has happened, for example:
they may require clarification of procedures or specific points from the officials directly involved in the matter;
or from The Services Technical Section.
If you are asked to attend a meeting, and the AO has the file, you may ask them to send it back to you before the meeting so that you can refresh your memory of what happened.
If you wish you can ask someone to accompany you. This could be a friend, colleague, manager or trade union official. The AO have said they are always happy to agree to this as long as the person concerned has not been involved in the matter under review. The Adjudicator will want to hear your own account of what happened since the purpose of the meeting is to hear an account from the person with first hand experience, therefore they will not invite people to speak to her through a representative.
Discipline
The Adjudicator does not become involved in disciplinary matters.
Feedback and Publicity
On a day-to-day basis Regional Managers/HQ Directors are expected to act on the Adjudicators recommendations and improve systems by taking any necessary action resulting of her advice. The Adjudicator is keen both to learn about our work and provide us with feedback on complaints handling and staff attitude. She also wishes to know what action The Service takes in respect of her recommendations, and to improve matters that she criticises.
She visits different areas of The Service to help achieve this and has regular meetings with Senior Managers. Her annual report covers all of the Government Departments and Agencies for whom she acts as Adjudicator. The report identifies anything that is causing repeated complaints, and may include proposals for changes to systems and procedures designed to improve the quality of our service. Copies of her Quarterly and Annual Reports can be viewed on the Secretariats Intranet site when available.
Further Help
If you are not sure whether it is appropriate to advise someone to complain to the Adjudicator, speak to David Swarts in the Secretariat. The Adjudicators Office will also happily discuss any aspect of their work with you. The address, telephone and fax numbers are:
The Adjudicators Office
Haymarket House
28 Haymarket
London
SW1Y 4SP
Telephone: 020 7930 2292
Fax: 020 7930 2298
Mediating Adjudication cases
Mediation is the process the Adjudicators Office uses to settle complaints by trying to get agreement between The Service and the complainant after both parties have themselves been unable to sort things out. It is about securing an outcome which both sides find fair and reasonable and which will end the dispute.
Mediation in this context is different from the traditional definition of negotiating a resolution. The Adjudicator will not be seeking to negotiate a settlement, but will want either the complainant or ourselves (sometimes both), to look again at aspects of the case following a thorough examination of the available evidence.
There is no pressure on either party to mediate and a solution will not be imposed through mediation. Rather, the AO will make proposals about how the dispute might be resolved. If either or both sides do not accept the proposals then the complaint will be settled by a recommendation from the Adjudicator.
Policy
The Services policy is to settle as many cases as possible through mediation. The benefit for The Service is that a successfully mediated case can help to restore the relationship with the complainant far more effectively than a formal recommendation. Although cases settled by recommendation will usually bring what is often a protracted dispute to an end, some complainants will continue to regard us as an organisation that has let them down. This is less likely to be the outcome in cases settled through mediation.
Many complainants are more receptive to a point of view when the AO explains things to them. They are more likely to listen and respond positively to suggestions for finding a fair and reasonable solution. Similarly there must be a commitment by The Service to consider objectively what the AO have to say when their view is that we should look again at our original decision.
However, mediation is not a mandatory process and if we do not agree with the terms of a mediated settlement proposed by the AO then we can ask the Adjudicator to set out her decision in a formal recommendation letter.
How the Adjudicators Office decides if a complaint can be resolved by mediation
The AO consider mediation as the first and preferred option for resolving every case they take up for investigation. The decision whether to proceed with mediation is normally made by the investigating Adjudication Officer in consultation with the Adjudication Manager.
The Adjudication Officer looks at the particular circumstances of each individual complaint when determining whether mediation may resolve the case. Here are a few examples of the circumstances in which mediation is likely to be the preferred option for resolving a particular case:
the Adjudication Officer believes that there was a genuine misunderstanding either of the law or our regulations by the complainant;
we did not have all the circumstances of the case
and, if we had, we may have taken a different view;
the Adjudication Officer feels that we did not understand the case from the complainants perspective;
the Adjudication Officer believes we do not accept we have made a serious mistake when their interpretation of our guidance suggests that we have;
we admit making mistakes but have not made appropriate redress according to our guidance, or the complainant contests the level of redress offered; or
we did not word our letter of apology as well as we could.
The Adjudication Officer examines the information The Service and the complainant provides. They determine what the gap is between us, and the reasons for it. Only then will they make a judgement on whether mediation may be appropriate.
When preparing our report for the AO we should take the opportunity of saying say if there are any aspects of the case which we could have handled better, or if we think that the complainant is not prepared to move even where the law clearly supports our decision.
The Adjudication Officer may want to clarify with The Service and/or the complainant the issues contained in the complaint or our report before deciding if a mediated settlement may be possible. If this happens the Adjudication Officer will explain the current status of the case and why they require the further information.
What happens if the AO consider there is scope for mediation
If, after examining all of the available evidence, the Adjudication Officers views that The Service should do more to settle the case they will tell us and explain the reasoning. They will invite our views and listen to any concerns we may have and, if necessary, will modify their proposals.
The AO will carry on a dialogue with complainants in exactly the same way: sometimes seeking to persuade them that there is no merit in their complaint; sometimes agreeing that there is and seeking their acceptance of redress consistent with our Code of Practice. Often the AO will seek moves by both parties to the complaint towards a position they consider fair and reasonable in the circumstances. For example, the Adjudication Officer may, following their review of the case, place a different weighting on some of the issues, for instance in cases of distress, and will try persuading both parties to their view. Mediation is a dynamic process in which the circumstances of the case can change as the investigation proceeds.
What we should do if asked by the Adjudicator to consider mediation as a way of resolving a case
We will consider positively the proposals made by the Adjudicator’s Office for resolving the complaint. The Adjudication Officer aims at resolving the case to mutually satisfy both The Service and the complainant. Although we will have tried twice at sorting things out before the complaint reaches the Adjudicator, we should not assume that there is nothing further we can do. The Adjudication Officer has the opportunity of taking a fresh and impartial look at all of the circumstances involved, and may offer a different perspective on the case which may alter our original view.
Most of the complaints the AO investigates are complex and protracted, or where the complainant has lost confidence in our ability to take an impartial view resulting in a breakdown in communications. In these circumstances the AO is often better placed for getting through to the complainant.
However it is also important that we consider carefully those proposals asking The Service to take a different view. In particular we need to consider:
is the course of action proposed something we have previously considered and rejected? If so, are the Adjudication Officers reasons persuasive?
has the Adjudication Officer established additional or new information we were not aware of e.g. health problems, level of distress caused, documentary evidence? If so, does the additional information change our view?
The Adjudication Officer will be happy to clarify any of their proposals and to allow time for further consultation with others involved.
If we accept the proposals, we should advise the Adjudication Officer. Similarly if we do not accept the proposals we should let the Adjudication Officer know as soon as possible. Although the Adjudication Officer is happy meeting about or discussing issues on the telephone, it is good practice if we confirm understandings in writing or by e-mail.
However do not re-open discussions directly with the complainant. The Adjudication Officer is responsible for communicating the outcome to both parties once discussions are finalised.
Remember: mediation is not about taking a different view of the complaint without good reason. It is about considering new material or looking at an existing situation from a different or fresh perspective which may change our view of the case leading us reconsidering our decision.
Closing mediated cases
The complainant and The Service will get the terms of the mediated settlement in writing. The letter includes how the Adjudicators Office has classified the complaint. The letter may include suggestions for improving our service. It is important we treat such letters in exactly the same way as we would treat a formal recommendation letter, by advising the Adjudicator’s Office of any follow-up action taken or proposed.
14. The Parliamentary Commissioner for Administration [back to top]
Should a complainant remain dissatisfied with how their complaint was handled either by The Service or AO, they are able to ask an MP to approach the Ombudsman on their behalf.
The Ombudsman (currently Ann Abraham) is an officer of the House of Commons, but is independent of government. The Ombudsman deals with complaints about maladministration, and her powers and responsibilities are set out in the Parliamentary Commissioner Act 1967. Any complaint made to the Ombudsman must go through an MP (although not necessarily the complainants own MP). Local libraries and citizens advice bureaux can provide complainants with the contact details of their local MP. These details can also be found on the House of Commons website at: www.parliament.uk/commons/lib/almsped.htm.
It is important that we avoid raising false expectations with the complainant, so we must clearly indicate what the Ombudsmans jurisdiction is. The Ombudsman c
annot investigate any matter for which the complainant could get a remedy by appeal to an independent tribunal, or by proceedings in a court of law. However, the Ombudsman can consider complaints which have been caused by maladministration (poor administration or incorrect application of rules). Further guidance can be found on the Ombudsmans website at: www.ombudsman.org.uk.