An appeal to the Ombudsman

This section outlines the role of the Scottish Public Services Ombudsman in challenging local authority decisions.

This content applies to Scotland

What is the Ombudsman

From 23 October 2002 the Scottish Public Services Ombudsman replaced the Local Government Ombudsman. [1] The new Ombudsman took over any complaints that had not been decided by this date and deals with any new ones.

The Ombudsman is authorised to investigate complaints from individuals who claim to have suffered personal injustice or hardship as a consequence of misadministration by local authorities. [2] This can include the way in which a local authority has handled the application of a homeless person. Injustice will usually be taken to mean a lack of equity, or unfairness, and misadministration to mean bad, inefficient or improper management or administration of duties. The Scottish Public Services Ombudsman may issue further guidance as cases begin to be dealt with.

Who can complain to the Scottish Public Services Ombudsman

The Ombudsman's authority to investigate complaints is limited. Complaints must be made by the person affected, or someone with written permission to complain on her/his behalf. [3] This can be anyone that the person affected chooses to act for her/him. In particular circumstances where someone is unable to act on her/his own behalf, for example as a result of incapacity, it is also possible for someone to act for her/him.

The person who is making the complaint, or on whose behalf it is being made, must be living in the United Kingdom when the complaint is made. [4]

A registered social landlord can also ask the Ombudsman to investigate a particular case. This is likely to happen if the landlord has been publicly criticised but where no complaint has been made to the Ombudsman. [5] The landlord must have taken reasonable steps to resolve the problem before requesting that the Ombudsman investigates. [6] There is no duty on the Ombudsman to investigate in these cases: the power is entirely discretionary.

What can the Ombudsman not investigate

The Ombudsman will not become involved with disputes about commercial premises or building contracts, nor will s/he deal with complaints about the level of rents or service charges, or complaints against neighbours (although the Ombudsman could become involved if the registered social landlord had failed to follow its own policy on, for example, dealing with neighbourhood disputes).

How to make a complaint to the Ombudsman

Complaints to the Ombudsman must be made within twelve months of the event or decision that is the reason for the complaint. If the Ombudsman is satisfied that special circumstances apply, s/he has the power to accept a complaint after this time but is not obliged to do so. [7] The complaint should generally be made in writing or by electronic means, such as email. [8] However, there is provision for the Ombudsman to accept verbal complaints if, for example, the person affected has difficulty with reading or writing or there is a particular urgency to hear the complaint. [9] Before examining the complaint, the Ombudsman must normally be satisfied that the complaint has been raised formally with the local authority and that the authority has been given adequate opportunity to investigate the matter and reply. The complainant should normally have exhausted the local authority's own formal complaints procedures, although the Ombudsman may decide to examine a complaint where s/he considers that the complaints procedure is inadequate or where the complaint has been dealt with too slowly.

The Ombudsman's service, including any mediation, is free of charge to both parties.

Procedures for determining complaints

There are three main stages in the Ombudsman's procedure for determining complaints. The first stage is where the Ombudsman finds it unnecessary to make written inquiries of the local authority. [10] The second stage is where complaints are determined after written inquiries have been made of the local authority. The first two stages may therefore include attempts by the Ombudsman to resolve the matter informally without a full formal investigation. [11] Finally, the third stage is where the Ombudsman considers that a formal investigation of the complaint is warranted, culminating in the issue of a report with the Ombudsman's conclusions.

The legislation does not give a detailed procedure that must be followed by the Ombudsman in relation to any investigation s/he may conduct, other than it must be in private and that the parties must be given the opportunity to comment. [12] The way in which investigations are carried out is therefore for the Ombudsman to determine. [13]

If the local authority does not take the action required by the Ombudsman, then the Ombudsman has the power to make a special report to the Scottish Parliament. [14]

Tactics in dealing with the Scottish Public Services Ombudsman

An adviser should always obtain copies of the local authority's complaints or appeals procedure and ensure that the process has been exhausted. The Ombudsman is unlikely to get involved before this process has been completed unless s/he considers that the complaints or appeals procedure is inadequate or that the complaint has been dealt with too slowly. If the complainant so desires, and provides a written mandate, the adviser should be provided with copies of all relevant correspondence and any other relevant material. An adviser can undertake the complaint with the Ombudsman on behalf of a client if the client gives her/his written permission. [15]

Judicial review or Scottish Public Services Ombudsman

It has been held that a complaint to the Scottish Public Services Ombudsman (SPSO) did not prevent someone raising judicial review, where this was the appropriate remedy [16]. It was noted that that the time bar for judicial review is 3 months, whilst the time bar for a SPSO complaint is 12 months. There have been Court of Session cases where the court did not extend the judicial review time bar to take into account time spent trying to complain to the SPSO. Therefore, if judicial review may be a remedy, advisers should ensure this is given priority. The SPSO, can be asked to delay the outcome of their enquiries, pending the outcome of the judicial review.

Last updated: 28 August 2020

Footnotes

  • [1]

    Scottish Public Services Ombudsman Act 2002 asp 11

  • [2]

    s.5(3) Scottish Public Services Ombudsman Act 2002

  • [3]

    s.9(1) Scottish Public Services Ombudsman Act 2002

  • [4]

    s.9(4) Scottish Public Services Ombudsman Act 2002

  • [5]

    s.2(2) Scottish Public Services Ombudsman Act 2002

  • [6]

    s.5(4) Scottish Public Services Ombudsman Act 2002

  • [7]

    s.10(1) Scottish Public Services Ombudsman Act 2002

  • [8]

    s.10(3) Scottish Public Services Ombudsman Act 2002

  • [9]

    page 12 A Modern Complaints System Scottish Executive October 2002

  • [10]

    s.11(1) Scottish Public Services Ombudsman Act 2002

  • [11]

    s.2(4)-(5) Scottish Public Services Ombudsman Act 2002

  • [12]

    s.12(1)-(2) Scottish Public Services Ombudsman Act 2002

  • [13]

    s.12(3) Scottish Public Services Ombudsman Act 2002

  • [14]

    s.16 Scottish Public Services Ombudsman Act 2002

  • [15]

    s.9(1)(b) Scottish Public Services Ombudsman Act 2002

  • [16]

    McCue v Glasgow City Council [2020] CSIH 51