Trapped in a system that is still not effective, efficient or fair.

04th May 2023

‘The biggest overarching issue is we forget there are people involved’.

The latest annual report from the Service Complaints Ombudsman for the Armed Forces has been published. In an interview with the BBC, Ombudsman Mariette Hughes acknowledged some of the work that has been done inside the MoD to try and improve the Service Complaints system, but made clear that, seven years on from the Ombudsman’s establishment, (as well as for the five years before that, when the role was filled by a Service Complaints Commissioner), the system remained neither effective, efficient or fair. She said, ‘the biggest overarching issue is we forget there are people involved.’

From the CMJ’s perspective, one of the biggest issues for our clients is that, for those wishing to exercise their legal right to bring a claim against the Ministry of Defence in the Employment Tribunal, they have to bring and see a Service Complaint right the way through to appeal. If they give up their complaint, as they would all of them like to do, then the Employment Tribunal automatically loses jurisdiction.  And they immediately lose their ability to bring their legal claim. We don’t know of any other court or tribunal where a claimant’s ability to access it is so controlled by the very institution whose conduct is being challenged. The MoD in all of our cases operates a practice of delay – immediately applying for Employment Tribunal claims to be stayed behind their own sclerotic complaints processes. In this way they drag cases out – often very traumatic cases – for years.

Despite some improvements, this report shows that the system is still broken. The services are still marking their own homework. The Ombudsman can only get involved at the end of a very long internal complaints process that is not doing what it should. Until there is meaningful independence in the complaints system – not the minimal gestures towards independence the MoD thinks it can get away with – things will not change.  An independent review (Wigston) called for far greater levels of independence in 2019; and the Defence Committee did the same in 2021. But the MoD continues to drag its feet.

Some of the top lines from the Ombudsman’s report for 2022:

– 12% of service personnel said that they had experienced bullying, harassment or discrimination in the last 12 months (a 1% increase on 2021). However, only 7% of those individuals went on to make a complaint. That was a substantial drop from 11% in 2021. The reasons given for not raising complaints were that personnel did not believe anything would be done about it (56%) and that complaining would adversely affect their career (51%). These figures indicate that confidence in the system, particularly for those experiencing inappropriate behaviours, remains worryingly low.

– The Ombudsman does not have direct access to the entirety of the Service Complaints system and is only able to review decisions which have been finally determined, and only then on receipt of an application. The result of this is that the Ombudsman can only provide limited assurance, based on a combination of case reviews, external and internal surveys, and anecdotal feedback. She would like greater access to inspect complaints as they are progressing.

– In 2022, 81% of individuals responding to the Ombudsman’s survey said the system did not take account of their individual circumstances.  As an example, the Ombudsman was aware of one case where an individual had been through an extremely traumatic experience and asked to be assigned a female Investigating Officer in order to make them feel more comfortable during the investigation. The Service declined to provide this – this was a prime example of a situation where the ability to grant a simple request would have vastly improved that individual’s experience of the process. There is a need to ensure a diverse demographic of personnel in the staffing of the system, to ensure requests such as this can be accommodated.

– The Ombudsman has observed instances where the defined Heads of Complaint admitted as the Service Complaint are too restrictive and do not allow for the complainant to add further examples and evidence.

– The proportionality of complaints investigations remains a concern, and the Ombudsman has noted the sheer size of evidence bundles and disclosure packs, which form part of the Service Complaints process. Consideration should be given to establishing clear guidelines on what evidence is required in order to make a decision, and how that information is presented and disclosed.

– 98% of individuals responding to the Ombudsman’s survey said the underlying issue at the heart of their Service Complaint was not resolved.

– The Ombudsman has spoken to many individuals on visits this year who have provided their personal experiences of trying to raise Service Complaints. In a worrying number of cases, individuals described being ostracised and treated poorly as a result of being involved with a complaint. In one case, an individual was told that they would be removed from their current posting if they chose to raise a complaint.

– As in last year’s report, the time taken to receive a final decision, particularly in appealed cases, remains a concern. Of those responding to her survey, 100% of those who had been a complainant and 95% who were respondents said their health and well-being was affected by the Service Complaints process.

– The legislative changes introduced in June 2022 mean that appeals can now only be brought on three specific grounds: material error of fact; material error in procedure; or material new evidence becoming available. As a result, fewer individuals now have recourse to an appeal determination. The Ombudsman is concerned that these grounds are too restrictive. They do not allow for individuals to bring an appeal on the basis that the decision reached is plainly wrong. She proposes the grounds for appeal should be expanded.   Complaints of individuals who have an appeal request denied are considered to be ‘finally determined’. This means the individual is able to ask the Ombudsman for a substance and/or maladministration investigation. However, she is unable to conduct new investigations in the same way that an Appeal Body can, and is limited to reviewing the evidence available to the Decision Body. The Ombudsman thinks that in cases where an initial decision may not have been correct, it is more beneficial to allow the Service the opportunity to rectify this before applying to SCOAF for an investigation. She recommends that complainants should be required to fully exhaust the appeals route before coming to her office for a substance and/or maladministration investigation. (CMJ strongly disagrees with this – far better to get a complaint to the Ombudsman as soon as possible. The office should have its own independent powers of investigation, the power to conduct thematic investigations and the right resources to do this).

– Tri-Service, female personnel are more than twice as likely to put in a Service Complaint than male personnel, and these complaints were disproportionately raised in relation to bullying, harassment and discrimination. Ethnic minorities personnel were not overrepresented within the Service Complaints system as a whole but were nearly twice as likely to raise a complaint about bullying, harassment and discrimination.

– The three main categories of Service Complaints made in 2022 were: career management (39%); bullying, harassment and discrimination (24%); and pay, pensions and allowances (9%). The category “Other” (28%) includes: inappropriate behaviour (10%); and welfare, accommodation, medals, and other terms and conditions of Service (10%).

– The average time taken to close a Service Complaint was 35 weeks, which is a slight improvement on last year’s performance (36 weeks). The average number of weeks to close a case which was not appealed was 26 weeks. However, cases which were appealed took an average of 79 weeks to close. As in previous years, complaints which involved allegations of bullying, harassment and discrimination took significantly longer to resolve.

– The Ombudsman expressed frustration at the time taken to complete some of her (and her predecessor’s) recommendations. At the time of writing the Ombudsman’s 2021 Annual Report, there were still four open recommendations dating back to 2016.

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