Oral evidence: Complaints and raising concerns, HC 108013 May 2014

Oral evidence, 13 May 2014.

Witnesses

Dame Julie Mellor, Parliamentary Commissioner for Administration and Health Service Commissioner for England, and Dr Jane Martin, Local Government Ombudsman and Chair of the Commission for Local Administration for England, gave evidence.

Chair

You are both extremely welcome. Could I ask you briefly to introduce yourselves? Then I am going to ask Barbara Keeley to lead the questioning, because she has to be somewhere else in a few minutes.

Dr Martin

I am Dr Jane Martin. I am the Local Government Ombudsman for England and chair of the Commission for Local Administration in England.

Dame Julie Mellor

I am Julie Mellor. I am the Parliamentary and Health Service Ombudsman and chair of our board.

Barbara Keeley

I understand you would like to develop a set of expectations for complaint handling by commissioners and providers that is measurable. Could you give us an example of a measurable expectation and how that would assist commissioners and providers in practice?

Dame Julie Mellor

Yes. This work, which we are doing with the Local Government Ombudsman and Healthwatch England, supported by the Department of Health, is something that we suggested to Government last year when it was responding to Clwyd‑Hart, because we felt the whole set-up, as we have been hearing earlier this afternoon, needs to be about what is good for the consumer. We are developing a set of consumer expectations with consumers that we hope can be used by individual boards to look at whether what they are doing is effective; by the regulator, in terms of looking at their effectiveness; and by commissioners, following on from the questions in the earlier session. I can give you examples from some research that we did when I started two years ago. I wanted our strategy to be evidence-based; we did some research with the public and they told us everything that was not right. If you flip that round, the kind of things that consumers are saying would be in a great complaints system for them are: “I feel confident that when I complain it will be straightforward and fair. When I complain I feel that I am listened to and my concerns are addressed. When I complain I can see, because I am told, that they have learned from the mistake in my case and are improving services for others.” That is the kind of outcome, vision, standards—whatever you want to call it—for consumers, for what good would look like, which we think needs to be the foundation that drives the culture change.

Barbara Keeley

What practical measures do you think can be put in place to help providers learn from errors that led to complaints and errors in handling complaints? Clearly we have heard that there does not seem to be much improvement or much change. Given that there is all this information, all this data that could help providers learn, what practical measures could be put in place to it make that happen?

Dame Julie Mellor

To make—

Barbara Keeley

To make learning happen—learning from the mistakes that were made or learning from the incorrect way that complaints were handled.

Dame Julie Mellor

It is probably the same things as will make the system work to deliver those kinds of consumer outcomes. There is quite a simple blueprint, which would involve learning. It has to be easy for the public to use, which means, instead of the snow-blindness of leaflets and posters telling them where to go, that they know, whatever the care setting is, who they go to if they have a question, a concern or a complaint; and that there is advocacy with one brand, with common standards across the country, probably provided by Healthwatch, so that everyone knows where to go, and they can do the learning and feed that back in as well. For each care setting the complaints system has to work effectively. I was very pleased with the PASC report, “More complaints please!” that came out a few weeks ago, which really emphasised leadership and measurement. If every board was asking their consumers the three things that I said—if they were asking the users of their hospital or GP practice if that is how they felt—what they actually scored would tell them what they needed to do differently. That would be one thing: leaders measuring properly. Then they need to be looking at how they can shift the blame culture. More than 50% of staff, in anecdotal reports to us, said they fear they are going to be blamed. That does not make them likely to feel non‑defensive; it makes them likely to shut up and not want to deal with it. Then all of that needs to be looked at in terms of the experience of the consumers, and in terms of what they have done to drive change and say, “What have we learned?” It is exactly as you were asking: “What have we learned about complaint handling and how we need to improve it? What have we learned about where mistakes have been made or there has been some kind of fault or service failure? What are the themes, what are the issues and what have we learned from that?” I think there is a particular role for non‑execs, because it is easier for them to be the scrutineer, to be the challenger and say, “Have we really got everything out of this set of complaints in this place, and do those issues apply to the other clinical directorates, all those other wards?” There is a particular role for non‑execs in terms of making sure the learning takes place. The final bit is being accountable. If we have that shared measurement framework of consumer outcomes—if everyone is focused on that—that is what the commissioner should be looking at: “What is the consumer experience of complaining to this service provider?” It is what the regulators can hold them to account for delivering. All those things will mean that you get learning at the different levels.

Dr Martin

I completely go along with that. I would not add anything in particular, but just summarise by saying that it clearly is a question of local leadership and corporate leadership in the bodies in our jurisdiction, wherever they are. Of course in my jurisdiction that means also local councils. We already do a lot of work with local councils to encourage a co‑operative approach to learning from complaints and building those into a scrutiny process, which I think mirrors what Julie has been mentioning.

Chair

I was interested in teasing out where, in the local government sphere, you think you are on the learning curve, or where you think local government is on the learning curve—in particular, in the context of this Committee, in social car—compared with the health service. Is either side better or worse than the other given that you are two separate organisations and have a slightly separate view of what we all agree should be a unified service for the individual user?

Dr Martin

Of course. I would begin by saying that I do not have any definitive research to answer the question. My organisation has been working with local councils for 40 years—1974 was our legislation—so we have developed very effective ways of working to ensure that there is good complaints handling in local authorities. That has built, latterly, into good scrutiny processes; you will know about the health scrutiny process, for example. Having said that, it is patchy, like a number of things across the country in relation to local councils, so some local authorities are better at doing it than others. I could not say, because I do not have the definitive evidence, but I think we are in a good place. I would begin by saying that local authorities have probably had more experience over many years of working in that way, and perhaps there are some things that colleagues in health might learn.

Chair

It is a bold public servant who says, “I think we are in a good place.”

Dr Martin

Yes, it is. Well, I have just said it.

Chair

I was struck that you said, “I think we are in a good place,” but you also said, “It is patchy.”

Dr Martin

Yes, that is true.

Chair

I wonder how uniform the experience is for a resident of a care home supported by a local authority, for example, knowing where to go to complain and being satisfied by the complaints process when it has run its course or, if they are unsatisfied, knowing where to go in the ombudsman process.

Dr Martin

Again, I want to stress that I cannot give you definitive evidence on that. Let me give you a specific example, which is that local authorities for many years have signposted complainants effectively to their ombudsman. I have no reason to believe that that has not been happening effectively, and I think it has been one of the things that puts us in a good place now and is shared across the country. What happens in terms of the feedback and the learning, I think, is patchier, to pick up on the point that was being made earlier, and that is the challenge for my organisation working with local government.

Chair

I will get back to the script, as it were, but how often do complaints come to you, as a result of having come through the system from the service provider, about the fragmentation, in particular, of health and social care for the elderly?

Dr Martin

I am sorry, how often do they—

Chair

Of the complaints that come to you, how often is the core problem that led to the service failure the failure to deliver a joined‑up service?

Dr Martin

Okay. Again, I cannot give you a percentage, but certainly I would say it was on the increase. That is the kind of work that Julie and I—our two organisations—do together about joint investigations, when it is very often the case that there is confusion or lack of co‑ordination, for example, on discharge from hospital, or when people have complex physical and mental health needs. Certainly we have many cases we can point to that show that that is part of the problem.

Dame Julie Mellor

I completely agree with what Jane said. If you look at the eight cases that we published this year—the joint cases that we published because we felt they raised issues of wider public interest—a number of those are poor co‑ordination between the clinical commissioning groups now and local authorities and providers. To give an example of one that we did jointly, we found in the end that 15 families had lost out on speech and language therapy for their autistic teenagers because the council had given the right to those services as part of special needs assessments, and commissioned it from what was the PCT—now the clinical commissioning group—who, at some point, decided they were stopping it for financial reasons. No one told the families, and the commissioners did not tell the council. It was only when the families raised it that anyone knew anything had happened, and no one took responsibility for sorting it out, which is why they dealt with us.

Chair

The commissioner is no doubt still paying for it. Can I go back to a question that I started the previous panel with? This is post‑Francis—I wrongly remembered Francis as being two years ago, but it was only one year ago—and is about the central conclusion of the Francis report and the virtually unanimous commitment, repeated many times, about the need for culture change, the need for openness and the need to be honest with ourselves about service failure. Do you think anything has changed?

Dame Julie Mellor

Yes, I do, not at the level of delivery but at the level of commitment. The analysis is now fairly well rehearsed. I have seen it in previous sessions that you have done in terms of what we call the toxic cocktail—the reluctance to complain and the defensive response—and you are not going to crack that with some tick‑box exercise. It is culture change to a more open—not defensive, but open—and transparent welcoming of feedback in order to restore trust. We are seeing national commitment and momentum, but the pace of change on the ground, going back to my answer to Ms Keeley’s question, will be determined by local leadership.

Chair

If one was being sceptical about that, one would say that there is recognition in the speeches and the writings that something has to happen, but if you are a patient who has received substandard care your experience has not changed.

Dame Julie Mellor

Probably.

Dr Martin

We are publishing figures later on this month looking at the year 2013, which is the period you are interested in and has been a period when we had increasing numbers of adult social care complaints come through to us. We have to be very careful what conclusions we draw from them and only a small number, 9%, are about privately funded care. It is still an increase in commissioned care, and a good deal of them are around assessment and care planning. Most of them are about residential care, but we also have a good deal of complaints about domiciliary care. These are very tentative figures. It is the first time we have published them as a separate report, so we will be able to make comparisons year on year from hereon in, but it is the fastest growing area of work coming through to us.

Chair

The critical question must be, mustn’t it, what is it that needs to happen? What does somebody need to do in the system that is going to convert the rhetoric and convert the Francis analysis, and the endorsement of the Francis analysis that we have all heard until we can recite the lines, into something that changes for a patient in Barsetshire General when Barsetshire General gets it wrong? What has to change? What makes the difference?

Dame Julie Mellor

I would say that, a bit like the previous witnesses were saying, it is not rocket science, but it will take time. As I answered earlier, the first thing is having a clear view of what success would look like from the customer perspective—from the consumer perspective—and having that as the common thing that is measured across the system. Then the simple blueprint is the support that needs to be given to users, with better information and better advocacy; for the leadership to actually be measuring, to be looking at where they are not doing well enough and changing things to do better; for the leadership to stop the blame culture and reward staff for admitting mistakes instead of making them fear that they are going to be blamed and disciplined; and for the leadership to say, “Actually, people do not like complaining.” In all our research, they hate that word. They say they might like to ask a question or express a concern. They do not like to make a formal complaint. What they want is it sorted out on the front line, not when it becomes part of some formal procedure. The boards need to make sure that the focus of improvement is on the front line. For that you need to build the capability of staff. Front‑line staff have said to us in deliberative research that we have done: “We don’t know how to deal with people when they are angry and upset because they think something has gone wrong. We’d like a bit of support and training on that.” Complaint handlers acknowledge themselves that they would like their competence improved. Sometimes I think they are too junior.

Chair

You placed a lot of emphasis in your answer on the word “leadership.”

Dame Julie Mellor

Yes.

Chair

Which implies a personality somewhere—leadership requires leaders, doesn’t it?

Dame Julie Mellor

Yes.

Chair

It requires responsibility, somebody to step up and say, “This is my baby.”

Dame Julie Mellor

In the largest health settings, the hospital settings, that would be the board—the leadership of the board collectively.

Chair

But it is not just the board, is it? It is people then connecting the board or an individual and accountability. The thing that I find so frustrating in this world is that everybody can make the speech about how something must change, but then they go on doing it the same.

Dame Julie Mellor

Yes. You need the range of mechanisms in place, whether it is skills or mechanisms like formally rewarding people when they have admitted a mistake and put it right. It can be mechanisms like deciding how you are going to do it so that whenever anyone has a question or concern in your care setting they know who to ask their question of, who to express that concern to. Those kinds of mechanisms need to be put in place, but it is the leadership that has to drive them.

Grahame M. Morris

In relation to complaints handling, rather than the substance of the complaint, if we think about the way it has been handled, if there were systematic issues that indicated in a particular trust that there was a problem with the way they were dealing with it, is it part of your role to identify that systematic failure in complaints handling?

Dr Martin

Yes.

Dame Julie Mellor

Yes, and in fact we do quite a lot. Sorry, I jumped in there, Jane.

Dr Martin

Keep going. I won’t forget the question.

Dame Julie Mellor

That is always my worry in these things. There are three ways, for example, in which we make sure we give information to the regulators, because our job is to provide the remedy for the individual. That is our unique job—to investigate, adjudicate and provide remedy for the individual. But we want to make sure that information is used, so we will provide the CQC, for example, with all our investigation reports where there is a recommendation for action—an action plan. That is the point that someone was making earlier: what people really want is to improve things for others. For example, in 2012‑13 we sent 299 of our investigation reports to the CQC and 11 to professional regulators. The second thing we do, at any point in an investigation if we have a critical patient safety concern, is that we refer to the regulator. The third thing we have started doing more recently is actually providing intelligence to feed into their inspection intelligence packs, so that they have information about complaint handling as part of their intelligence packs.

Dr Martin

We do a lot of similar work with the CQC, but I think your question was about local complaints handling, which is clearly absolutely key. I do not think either of us is here—I certainly am not—to tout for business for the ombudsman. We sit at the kind of apex of a system, and we have been discussing how the system is not working effectively at the moment. We will always comment on local complaints handling as part of a case that comes through to us. Where there has been substantive failure we will always comment on that and we would feed that back to the CQC because, of course, their regulation 19 is about social care providers having an adequate complaints handling process. The answer is yes, we do feed back.

Grahame M. Morris

The route would be through the CQC rather than the provider organisation, as a matter of routine.

Dr Martin

It would depend. If we had a concern about the complaint handling process we would do two things. We would feed it back to the body in jurisdiction, the body concerned, and we would also feed it back to the CQC. All our statements are public anyway, but we would feed it back.

Dame Julie Mellor

Yes. I would say the same. I specifically mentioned what we do with referring things to the CQC, but very often people’s complaint to us is about the quality of the complaint handling and how their complaint has been dealt with. One of the reasons we decided to take on more investigations is so that we can give more feedback to the service providers about the quality of their complaint handling, and we will be reporting publicly on it.

Charlotte Leslie

I am going to look at a kind of “Doctor, heal thyself” situation, which I think, pre‑Francis and historically, has been one of the concerns people have felt about the PHSO—that it was not able to conduct investigations into itself properly. I am going to put to you, in a way as devil’s advocate, a concern that I know has been raised with you before. It is a specific case, but it is more an illustration of whether things are as in order for the PHSO as we would all like them to be. This is how the external person might look at it. As you know, in 2010, I think it was, James Titcombe raised a complaint about the north‑west SHA and I think a chap called Jonathan Tross within the PHSO, who investigated it, said, “Everything is fine.” James said, “No, isn’t not fine. I am launching a legal proceeding.” An external review was done, and indeed it was found not to be fine. I know that James and yourself had quite a lot of contact and a lot of things have progressed since then. But one thing I think members of the public might be concerned about is that there may be seen to be a repeat of history. As this Committee knows, there were quite big questions about collaboration between the CQC and Ann Abraham, in her time at the PHSO, which did not seem to be answered in the Grant Thornton report, for reasons I think the Committee can all recall, and James has, as I understand it, requested an external review. A review has been done into whether there was collaboration by Jonathan Tross, the same chap, and it has all said, “Everything is fine.” James is saying, “No, I don’t think it is fine. I am going to have to launch a legal process again,” which, for an onlooker, looks horribly like history repeating itself. From your point of view, historically—I am just trying to understand the situation—do you think that Ann Abraham and the CQC acted entirely independently in that instance, just so we can get the position of the PHSO on this?

Dame Julie Mellor

There are about a million questions in there.

Charlotte Leslie

There are, I am afraid.

Dame Julie Mellor

To try to take you through them, I would like to say a bit about what we learned in that case and from other feedback, and what we are doing differently, and what we have said publicly about the cases we have investigated from James Titcombe. When I met James Titcombe and heard of his experience, it had a profound effect on me in giving me the steel to make changes in the way that we operate. Indeed, this Committee’s previous inquiry on the subject—less your conclusions but more the individual evidence that I read—and similar feedback from PASC and from other users, and from Rennie Fritchie, who did a review for us on how we dealt with potential avoidable deaths, all said one main thing to me, which was that we needed to do more investigations. So we are. This last year, which has just completed, we did six times more investigations than in previous years. We have done close to 1,778, compared with 300 the year before. That is obviously significant learning. The other thing on feedback was to do what we tell others to do, and to learn from complaints to them. I was very clear that where people complained about the decisions that we had made, the vast majority were about us declining to investigate. All of that means that we have changed that.

Charlotte Leslie

Can I cut in very quickly on that point about really upping your investigations, which, from the patients’ point of view, is welcome? How have you managed to do that with—I am presuming—the same number of staff?

Dame Julie Mellor

We have three times as many staff doing health investigations as we did before. The reason we have been able to do that within existing resources is that we had a very large group of staff who were assessing complaints to make the decision on whether to investigate. They are nearly all now investigators. In addition, the ones that we investigated in the past were the most serious and complex, and we were pretty sure that there was something wrong by the time we decided to take them on for investigation; they were complex ones. Now we are taking on a much broader range of investigations, a lot of which can be done a lot more quickly. Those two reasons are why we are able to do it within existing resources. I am obviously not going to comment specifically on the current discussions with James Titcombe, but I can repeat what I said when we published. We have investigated every case that James Titcombe brought to us, and we have published them all. When we published them I made it clear that I apologised for the impact on the family of the original decision not to investigate his case. He and his family may have had answers sooner if we had investigated earlier. It is not a decision we would make today, because we would take on that kind of case for investigation, for all the reasons I have just given. The other thing is that there was some significant learning for the systems from those investigations. He was right to say he wanted those investigations looked at by an ombudsman service. The ones that we published just before Christmas showed a fundamental conflict in the arrangements for regulation and supervision of midwives locally, from his case and two others. Then the investigations into Morecambe Bay and their dealing with his complaints showed that there were botched investigations, and showed a lot about what is needed in those kinds of serious cases—independent investigations that use human factor science and root‑cause analysis, to not just say, “Did something go wrong?” but ask why and learn from it. All of those recommendations are in the seven published reports that we made.

Charlotte Leslie

It is a remarkable achievement that you have managed to up the level of investigations without having to expand the work force; I suppose you are spending more time investigating instead of arguing about whether you should investigate. That is really to be commended, but I suppose someone looking at the new organisation who has significant doubts about the old organisation would want to know not just about the learnings you have taken from the case but the learnings about the way the PHSO is then able to investigate possible wrongdoing in itself. If there was collaboration between Ann Abraham and Cynthia Bower on that, as it seemed to many onlookers, it really is a very serious case of maladministration, and you would expect an organisation that was really serious about making sure nothing like this ever happened again to be on the front foot in investigating that particular instance and everything around it—I suppose, to ascertain which existing members of staff may have been involved or may have been party to that, and who knew if anything did go on, and perhaps to hold those who were involved accountable appropriately. The reason I am pressing on this is that I would have thought it was an important signal for the PHSO to make, to be very much on the front foot in seeking an external investigation into the allegation that has been made about collaboration, which is, I imagine, one of the highest order.

Dame Julie Mellor

As you say, we shared all the information with the Grant Thornton review that was done for the Care Quality Commission. We shared information with the Kirkup investigation too, and I think that is the place for those discussions to be had.

Charlotte Leslie

Just to clarify, will the PHSO be under the jurisdiction of the Kirkup review?

Dame Julie Mellor

As far as we are concerned, we have provided all the information they asked for, or we have offered—where people’s data is protected under the Data Protection Act and not ours to give—to contact those individuals and ask them if we can give their contact details to the investigation so that the investigation can source it directly. We are co‑operating as much as we can to make sure that investigation has what it needs.

Charlotte Leslie

Thank you very much.

Dr Wollaston

Can I direct a question to Dame Julie, please? In 2011 this Committee recommended that the legislation be amended so that PHSO could investigate the actual investigations undertaken by providers themselves, and at that time that was turned down. It was about investigating internal reviews. At the time the response was that you were not intending to do that. What is your view?

Dame Julie Mellor

I am sorry, but I do not think I understand the reference.

Dr Wollaston

We understood that you were not allowed to conduct independent reviews of the findings of internal reviews by care providers.

Dame Julie Mellor

That would be a normal part of what we look at when we are investigating a complaint.

Dr Wollaston

Have we been given the—

Chair

We were told then, “The Ombudsman’s current terms of reference prevent her from launching a formal investigation unless she is satisfied in advance that there will be a ‘worthwhile outcome.’ We have concluded that this requirement represents a significant obstacle to the successful operation of the complaints system.” I think in some ways that relates to—

Dr Wollaston

So it has genuinely moved on. It covers those internal reviews as well.

Dr Martin

It does.

Dame Julie Mellor

One of the things that we are working together on, in converging our two services, is using the same criteria to assess cases for investigation. Based on our legislation, they are roughly: “Is there an indication of injustice? Is it due to maladministration or service failure? Has it been or can it be remedied?” Those are the criteria that we both use in our general discretion to decide whether to take on cases. Historically, there was a high bar. My organisation has reduced the threshold.

Dr Wollaston

It has lowered the bar, so it lowers it for that as well for individuals.

Dame Julie Mellor

Yes.

Dr Wollaston

The other point, following on from that, is how would anyone outside the organisation know how well you are achieving your objectives as an organisation? Charlotte raised one individual case, but I have been contacted by another family, Mr Scott Morrish, who has been with the PHSO for 25 months now and has concerns about the way the organisation handled his complaints about the PHSO, and he has asked to meet with you. Hpw do you yourself as an organisation—how does the PHSO itself—respond to complaints about your own organisation’s handling of events?

Dame Julie Mellor

Again, there are lots of elements to the answer. We are starting this month to put all our performance statistics on the website so that people can see for themselves how many cases we are doing and how many cases we have closed. We want to be as transparent as possible. Like the Local Government Ombudsman, from July, we will be publishing case summaries of all our decisions on our website. We obviously have a quality assurance process which historically has looked at quality of decision making, timeliness and customer service standards. We are in the process of changing that, because a lot of it—or at least the quality of decision making—was in the line boards, by team leaders. But when you have a high‑volume service you need to move to a quality assurance sampling process, and we are in the process of doing that. Where people are unhappy with a decision that we make—as I said, historically, that unhappiness was around declining to investigate cases; obviously in doing six times more investigations that is going to be a lot less—they are able to request a review. To start with, if we are investigating, they have a chance to comment on the draft report, so that is a chance to tell us whether we have got the facts wrong or whether we have misconstrued things. People very actively comment at that stage, as do the service providers that we have been investigating. That is the fundamental chance people have to engage with us. But if they are not happy with the outcome, with the decision, they can request a review. If there is no evidence, or if the facts have been misconstrued or there is some evidence that it is a flawed decision, we will review.

Dr Wollaston

One specific complaint that has been raised is that there is a tendency to want to narrow the scope of an inquiry, and that there is no option for those within the system to say, “Well, actually, no, you missed this important point.” The information, I am told, is that they are unable then to broaden that to cover very important aspects they feel are missing. Do you think that is a fair criticism?

Dame Julie Mellor

There are a range of issues like that that we are looking at this year. Last year—the first year of our new strategy—I was very clear that the biggest thing we had to do was more investigations. This year we are looking, as I said, at our quality assurance process. We are looking at what we need to do to help manage expectations and help people through our three processes of being an inquirer, whether we are assessing it for investigation, and our investigation. The point that you make is one that we want to get better at, which is helping people scope their complaint up front before we start.

Dr Wollaston

Thank you.

Chair

Can I come back to this concept of a worthwhile outcome? Is that part of the primary legislation? Is that a legislative constraint?

Dr Martin

Not as such, but we have to consider any alternative remedy, which is quite closely aligned to that. I would not use the phrase “worthwhile outcome,” but, as Julie said, what we do in our organisation is use an assessment code, which both our organisations are going to pick up, where we look at the discretion that we can apply. An ombudsman’s discretion is very wide and is supported by the courts, as you will no doubt be fully aware, and that has served us well, I think, in giving us the opportunity to look at each case on its merits. In doing that, all things considered, we have to take a view on the remedy that we feel we can procure from the process. Also, we have to think about whether there are other alternate remedies. The one that springs to mind—I do not know whether it is behind your questioning or not—is that certainly in our organisation, if somebody came to the Local Government Ombudsman feeling that they had had a bad experience and they were looking for a big sum of money to put things right, that would not be appropriate. I am generalising like mad—each case on its merits—but if you were looking at a personal injury-type issue you probably would be much better going to the courts. That is not to try to make life difficult for anybody. It is trying to bring an intelligent view to bear on what the best route for anybody is. I do not know whether that is helpful.

Chair

I think it is helpful in that it illustrates the issue, and the neighbouring issues that are outside the scope of the ombudsman’s role. I get that. I suppose the question is whether the current framework—either of the legislation or of the case law—prevents either ombudsman function from investigating cases of service failure as experienced by an individual citizen which the citizen might reasonably expect you to be able to investigate without straying off into personal injury adjudication.

Dr Martin

My answer is that we have discretion on those matters. There is no limit. There is no reason why we should not consider those, and indeed we will. All I can say is that we have wide discretion and we have to exercise it, and those who exercise it on our behalf have to exercise it intelligently.

Chair

The reason why I push you on it is that it is within the memory of the majority of members of the Committee that Dame Julie’s predecessor pleaded legislative constraints as a basis on which she was prevented from investigating cases where the citizen thought she should be able to investigate.

Dr Martin

You have my understanding of my legislation. I had better check that I have not misunderstood yours, Dame Julie.

Dame Julie Mellor

No, it is based on the same legislation. I think what Jane said is right and adds to what I was saying about us having a different threshold now for complaints, and, as far as I am concerned, that deals with it.

Rosie Cooper

I am not sure whether the first part of what I wanted to ask you has been asked, so I am going to ask it, because it will be followed on by questions a bit later. To both of you, what percentage of complaints made to you do you investigate, and what outcomes do you think your involvement in the process should provide?

Dame Julie Mellor

One of the things that I have found reassuring as we are transforming our service—Jane’s organisation is ahead of the curve because they have been doing it longer than I have—is that we have reached a similar point, which is that we both investigate about 55% to 60% of those that are ready for us to assess and make a decision on whether to investigate. That is what we take on. Of those that we take on, we have a similar uphold rate; we both uphold around 45% of cases. That gives you a sense of it.

Rosie Cooper

Could you just expand on the 55% to 60% of cases available to you? In the evidence that comes to us—I understand that it reflects history as well—most people see the ombudsman service as an independent referee where, when they made complaints, those complaints for the most part were not investigated, and that figure of 55% to 60% would seem rather alien. I have to tell you, Dame Julie—it does not apply so much to the local government ombudsman—that I and, I think, the public see you as an independent referee who is only on the pitch for 10 of the 90 minutes and all hell breaks loose in the other 80 minutes, so your 55% to 60% seems very alien to me.

Dr Martin

I am sure Julie will want to answer that in a moment, but can I come in to give you some up‑to‑date figures on my organisation? This is just in adult social care complaints, not the whole raft of stuff that we look at: for the calendar year 2013, we had 2,456 complaints and inquiries registered with us, of which we considered 1,846. I have not done the percentages, but we can get them for you, or I am sure you will be able to work them out. We considered 1,846, and, of those, the uphold rate was about 46%. That is purely on the bit of the business that comes to us, so that might be helpful when you are thinking it through.

Dame Julie Mellor

You are right that this largely relates to historical cases. I have huge sympathy for the kind of frustration that people experienced when a high proportion were declined.

Rosie Cooper

You are saying that of the cases that come to you—I do not know in what period; you will outline it for me—you are actually investigating in the area of 55% to 60%.

Dame Julie Mellor

Yes. To give you the concrete figures at each stage, we both run a kind of inquiries service, so people ring us up. In the last year, in health we had about 17,000 people calling us up and making inquiries. Around 12,000 of those were people who wanted advice and information on how to complain, where to go, how to get a final response from their service provider and so on. Of the 5,000 that were actually saying, “We want you to look at our complaint,” we are investigating between 55% and 60%, based on a full year of our new approach from April to April. Of the 5,000 we took on for investigation—I put the piece of paper over there so I do not have it in front of me—we assessed around 5,136. We accepted for investigation 3,075. That is 60%.

Rosie Cooper

Forgive me; I will go back to the questions I was going to ask you in a second. We have been supplied with figures which say, Dame Julie, that you plan to complete 5,000 investigations in 2014‑15, against 232 in 2012‑13 and only 904 in April to December 2013, which is the year you just quoted. You are going to have to go some to go from 904 to over 2,000 in three months.

Dame Julie Mellor

We completed 1,778 health cases in the last financial year.

Rosie Cooper

Okay.

Dame Julie Mellor

The average range, the productivity, has gone up over the year. The number per month is now much higher than it was at the beginning of last year.

Rosie Cooper

It doubled in the last three months. The next question, therefore, is to what extent is that increase accounted for by now calling the assessments formal, whereas the investigations that you did previously were undertaken informally? Is that what is going on?

Dame Julie Mellor

At one level I understand people’s scepticism, but on another it is very frustrating because we have really changed things, so the figures are real. A statutory investigation, as Jane will say, is a statutory investigation. Those 1,778 are statutory investigations. That means that what people are getting that they were not getting before is a final adjudication on their complaint, and where it is upheld they are getting individual remedy.

Rosie Cooper

Great. Earlier, you talked about the three tests and how organisations should apply them to themselves. Have you applied them to yourself, to the ombudsman service?

Dame Julie Mellor

Which three tests are you talking about?

Rosie Cooper

I am talking about how your complainants are dealt with; you gave them earlier on—your three measures. I don’t want to repeat them and get them wrong.

Dame Julie Mellor

Yes: “I feel confident that it is straightforward and fair, that I have been listened to and that my concerns are addressed.” No, we haven’t yet, but we will be. That is part of what we are doing this year.

Rosie Cooper

How do you think you will fare?

Dame Julie Mellor

We know from our customer satisfaction data that, where we investigate, the overall satisfaction rate is 67%. Where we have upheld the case, the satisfaction rate is 98%. Where we do not uphold, it is 57%. That is something that is common to all ombudsman services. There is always a difference in customer satisfaction, which is obviously influenced by how people feel about whether we have upheld their case or not. But those satisfaction ratings are actually higher than any other ombudsman service I have looked at.

Rosie Cooper

The individual submissions that we received to this inquiry and that were received by the PAC’s inquiry have been critical of the treatment of the evidence they supplied in support of investigations. The Public Accounts Committee recommended that you should review the transparency of arrangements for reviewing decisions. How would you respond to that?

Dame Julie Mellor

In the cases that we are talking about and the individuals who gave evidence, I think it was to the Public Administration Select Committee rather than the PAC.

Rosie Cooper

Even people who submitted evidence to us.

Dame Julie Mellor

Yes. Nearly all those cases were historical cases where the organisation had declined to investigate the cases. They never had an investigation report where they could look at the draft and comment. What they got was a reason for the decision not to investigate, which would include some reference to information they had received from the service provider. I can quite understand that it would feel as if that was biased information, and it is part of why we changed. It is part of why we are making sure that what they get is a formal investigation report that lays out the evidence from the service provider and from the complainant, gives our findings based on those facts and then gives an adjudication. Again, I think it is a historical problem that is related to how people felt about the letters they got saying we were declining to investigate. It is different when we are investigating.

Rosie Cooper

So you are happy with the transparency now.

Dame Julie Mellor

We will look at the quality assurance. I do not think anyone is ever completely happy, because we always want to learn and improve, so we will use the feedback we get. We do not yet have, for example, a full year’s analysis of the reviews where people are not happy with our decision, or of the complaints about our service, because last year’s data is clouded by the fact that at the beginning of the year we were still closing cases from the previous approach. We do not have a full set of data yet. But we will be looking at that to see what it is telling us. What has worked about the change? What else do we need to work on?

Rosie Cooper

No doubt we will come back to that another time. This is the last question from me. There have been several proposals for a single public service ombudsman for England to cover health and social care and other public services. Do you support that principle, and what changes in legislation will be required to make that work of benefit?

Dr Martin

I will give you a breather, Julie, and start off. First of all, the short answer is yes. We both on record—I certainly am—as supporting a public services ombudsman for England. The key driver for me is the increasing integration of health and social care. While we can do joint investigations together—we already have the legislation which allows us to do that, and indeed we are making lots of progress on the way we do that—I think, for all the reasons we have heard, including in the prior session, about making the system less complex and much easier for complainants to access, that we ought to have one institution, for want of a better word, which is easy to access, where we get a seamless service. We are in the same business. Why would we not have common standards, common operating processes and so on? Much of that we should be able to do, and we are already talking formally about the way we can harmonise our two organisations; joint investigations are the Trojan horse, if you like, for doing that. In my organisation, we have already spent some time transforming the way we do things, as Julie has already mentioned. We are talking about the ways in which our two organisations can agree on a way forward. You asked about legislation. We can do a huge amount without legislation, but of course when it comes to jurisdictional matters and actual structural change, we would need Parliament to decide precisely what the institution should look like for the future. Both our organisations are already helping and supporting the work that is being done, and we will wait to see what comes from that.

Dame Julie Mellor

From my perspective, I more than support it. I thought it was needed when I applied for the job and I have been pursuing it ever since, so I was thrilled that PASC decided to hold the inquiry on the framework for ombudsmen. I was thrilled with its findings and I am thrilled that Oliver Letwin said that he will take the findings from PASC, and that he has commissioned Robert Gordon to do a review. I pray that it leads to action, because previously we had a Law Commission review and the Calcutt inquiry. We have had a range of pieces of work on these issues over time. There is such consensus that this needed to be done, for one main reason—it is better for the public. They can think, “If I have a complaint about a public service in England, there is one place to go,” and they do not have to think about which organisation. I completely support it. In terms of the powers, there are a couple of specific ones on the health bit of the remit. One is that we have this old‑fashioned thing where people have to complain to us in writing. We have not been challenged on it, and the LGO do not have that constraint. It would be nice to take that away and then we can make sure it is really easy for people to complain to us. There has been some debate about the issue of alternative legal remedy. We are prevented from looking at cases where someone has access to another legal remedy, like the courts, or clinical negligence, where they would get large amounts of money, for example; they would get financial compensation. We think it would be better if the law said that actually, we as ombudsman services have discretion to take on cases even where someone is pursuing a legal remedy. A legal remedy does not give people an apology, and it does not give people the learning and the action plan. A huge proportion of our remedies will include an action plan to prevent the same thing happening to others. We would like to see that in place. The third thing we would like is to have the power particularly to deal with the most vulnerable people, who are most likely to experience service failure and least likely to make it to us. We would like to have the power to investigate on our own initiative. An example could be, as one of the early questions was, “What do we see as the lack of co‑ordination between councils, CCGs and providers?” We could take on an investigation on our own initiative where we see that leading to service failure, consumer detriment and loss of service or lack of care. We would like that power as well.

Rosie Cooper

I suppose there is one final bit; Charlotte asked about it earlier, really. Would you contemplate accepting second‑tier complaints from privately provided health organisations? For example, we have dealt with a fair bit of cosmetic surgery. Should the public pay for that service—for a private service?

Dame Julie Mellor

It might be worth hearing about the Local Government Ombudsman’s experience.

Dr Martin

We already have private providers in social care in our jurisdiction following legislation in 2009. Since 2010 we have effectively been the social care ombudsman, and that has meant that, if you have two people in adjacent beds in a residential care home and one is paying for their care privately and the other is receiving the same care commissioned by the local authority, both those people can come to one ombudsman if they have a complaint. That seems to make complete sense to me. We have been working with that system, as I say, for three years or so. It is probably only scratching the surface, frankly, in terms of the private providers, but that is a whole other debate and discussion we might want to have. It works. Why would we not want to have one place where we have simplicity in the system and you come through to one ombudsman? Your question about funding, of course, is a good one. Certainly we have had Government funding, because it was an initiative that it was felt important to support. As to whether that continues in the future, maybe we need to talk about funding models. Let’s do that.

Dame Julie Mellor

From my perspective as the head of an ombudsman service, there is a principle here, which is that any consumer of any service, public or private, should have access to an ombudsman service for the final adjudication on their complaint. Why would private health care be any different? There is a second-order issue, which is who is best placed to do that. There are different arguments and we have said, because we were asked by Government, that we would be very happy to take it on; we have a whole clinical advice team already—we have the expertise—so we would be well placed to do it. Also, a bit like social care, you are seeing now with foundation trusts that they have private provision within the foundation trusts as well as public provision. Again you have one consumer and it would be better for them not to get confused and wonder where they have to go; there should be just one place they go for health complaints.

Rosie Cooper

Thank you.

Chair

Did you want to come back, Dr Martin?

Dr Martin

I wanted to make one point, which is that in the broader sphere of public service delivery, the boundary between private and public provision is increasingly blurred. It should not be an issue.

Chair

It’s meaningless. If you were to have an NHS prescription dispensed by a community pharmacy, is that public or private sector?

Charlotte Leslie

I was going to ask you what powers you would like that you do not already have, and, Dame Julie, you have very effectively answered. Dr Martin, I do not know if there are any powers that you would want that you do not already have that you think could enable you to do your job even better.

Dr Martin

No, I do not have a shopping list. My main concern is that my organisation, like Julie’s, stays relevant to the landscape that we are working in. If that means that we need to look at the way our legislation is currently put together, I am up for that. I think we have very good free direct access to our organisation. Some of the issues that Julie has raised are not issues for us. No, I don’t have a list.

Dame Julie Mellor

It is not an absolute power that we want; actually, we would like a more active relationship with Parliament. If we are going to make better use of the insight from the complaints that we get, whether it is to improve services or to improve complaint handling, we would like a more active relationship with Parliament. Again, I was particularly thrilled with the PASC recommendations, which I do not know if you have seen. PASC recommended that they were required to use the intelligence that we gathered to hold to account the administration of Government, but that they would also ensure that our reports were referred to the relevant departmental Select Committees, and the Committees should use those reports to hold their respective Departments to account. I would be very keen to do that. To give just two examples—the two last year—there was one report on midwifery regulation, where we made recommendations for changes in the regulation, and one on sepsis, where the UK Sepsis Trust estimated that if our recommendations were acted upon it could save 12,500 lives a year. I would love it if Parliament was able to use that insight and use our reports to hold Government services to account.

Charlotte Leslie

If the Committee made recommendations, you would like that to be one of them.

Dame Julie Mellor

I would, and, even more than that, I would like to offer, if it would be useful to this Committee, that we have a private seminar where you share the things that are on your minds about health services and we share our insight. It might help inform your programme and it would inform our systemic activity.

Chair

That is an interesting question, which I am going to suggest we leave in the air because there is another vote coming. We will leave it in the air with the observation that Select Committees prefer to hold their meetings in public.

Dame Julie Mellor

It doesn’t have to be private. I don’t know why I said that.

Chair

Thank you. Oral evidence: Complaints and raising concerns, HC 1080 30