Education, Children and Young People Committee [Draft]

Meeting date: Wednesday, May 29, 2024

Official Report 767KB pdf

---

Child-friendly Complaints Handling Principles

Welcome back. I thank my deputy convener for chairing the first part of the meeting this morning.

Our next item is to hear evidence on the Scottish Public Services Ombudsman’s child-friendly complaint-handling principles. I welcome Rosemary Agnew, the ombudsman, Andrew Sheridan, head of improvement, standards and engagement, and Josh Barnham, improvement standards and engagement reviewing officer, all from the Scottish Public Services Ombudsman—I am having difficulty with saying that.

I believe that you are about to make an opening statement. Rosemary Agnew, you have up to three minutes, please.

Thank you very much, everybody, for inviting us. As you will gather, we are very enthusiastic about it. We thought it might be helpful to give you a very quick run through of why the Scottish Public Services Ombudsman is doing child-friendly complaints in compliance with the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.

This actually started back in 2020 when the original act was going through Parliament. We know about all the issues with the Supreme Court and all that, but at the time we agreed with the Scottish Government that we could use our powers under the Scottish Public Services Ombudsman Act 2002 to set complaint-handling standards to develop process, procedures and an approach to complaint handling that would be UNCRC compliant. That meant that we were able to start and carry out a project that took a long time but also took an effective co-design approach. We were able to talk to lots of children, young people and other stakeholders.

The approach that we took does not simply say that a child-friendly complaint process is one that is written in child-friendly language. What came out of all our consultation and co-design was that there are three types of complaint. Some are made by children directly, but drawing on the feedback that we have had from children and other ombudsmen, we do not expect there to be a huge number of those. There are those complaints where the child is in control but they might be supported by an adult advocate. Then, as we can already see, the majority of complaints are made by an adult concerning the service that a child has received.

Effectively, we went through the co-design approach and produced some complaint-handling principles. That is what is before you and it is the same approach that we take with complaints generally. There is a set of principles with a set of guidance sitting behind it.

The starting point for us was not to reinvent complaint handling. We have produced principles that you must adhere to for child-friendly complaints, and additional guidance, and we can explain those next. The principles help you to apply existing complaint-handling procedures in a way that is child-friendly and compliant with the United Nations Convention on the Rights of the Child—I am having the same difficulty with saying that as the convener had with saying SPSO earlier.

11:00  

I have a couple of important things to say. Although the principles will make complaint handling UNCRC compliant, I will have oversight only over the organisations that are in my jurisdiction. Although the materials and resources that we produce will be as transferable as possible to any organisation, there are still whole areas of public service—the police and the judiciary—where I will have no oversight of compliance with UNCRC principles and rights because those areas are not in my jurisdiction.

The other thing worth saying is that we are not experts on the UNCRC and children’s rights. We are pretty good at things that relate to complaint handling, but we are looking at one small area of the UNCRC act when it comes into force and what it will mean for public bodies, specifically on the complaint-handling side.

The other significant difference is that the child-friendly complaint approach is not process-based; it is rights-based. If you compare the principles that we have put before you with general complaint-handling principles, which tend to be about timely delivery, good quality and so on, they are more about ensuring that you meet the rights of the child. For complaint handling, the fundamental difference is that meeting the rights of the child is a balance. The child’s rights have to be balanced with the parents’ rights and with other rights, but they must remain fundamentally at the centre of the approach that you are taking to investigate the service.

We will probably get into some of that detail in questions, so I do not want to take up too much time. However, I thought it important to highlight that we are very focused on complaints for UNCRC compliance but we will have oversight only over the public bodies that are in my jurisdiction.

That is a good place for us to start. The line of questioning that we are moving to next will, I hope, ask for more specifics.

I would like you to talk a little bit more about the co-design process. Who and how many did you consult? Were they able to substantially engage? Do you think that you reached all parts of the young people community, if we can call it that? People obviously have a variety of different needs and priorities. How did you capture everyone?

We probably did not capture every single person, but I will ask Josh Barnham to speak to that because he is the one who did all the hard work and knows it inside out. Over to you, Josh.

The main body of the workshops that we did was in classrooms. I went to a primary school in Fife to speak to young children of all primary school ages. I then did the same thing in a high school. There were 30 young people in each of those, which meant that we had a pretty reasonable mix, but we were cognisant of the fact that we would not capture some of the more vulnerable groups. While I was in those schools, I made sure to stop in with the support bases or departments that are supporting children who are having difficulties and are not in mainstream classes for whatever reason. We were aware that they are probably the children who need to use these principles more.

In line with that, we identified specific groups that we wanted to capture. For example, we spoke to a group of young carers down in Dumfries and Galloway. We went to a charity in Alloa that supports vulnerable young people and which had refugees there. We also spoke to the parents of children with additional support needs. We see a lot of complaints from those parents about additional support needs and how the support is applied. We tried to use our existing experience to identify the groups that we thought would most need to engage with the process.

As Rosemary Agnew said, we did not capture absolutely everybody and I would have loved to have been able to do more, but we did capture those vulnerable groups that we think will make most use of the process.

Was there anything that surprised you from that engagement? What new things did you learn from it?

There was nothing but surprises.

There were a few things. They were not surprises as such but we were hearing children and young people’s perspectives. We were obviously engaging with responsible adults and kids. At one meeting, we asked how children should get access to make complaints and the answer was, “An app. Put an app on the phone.” Then, in the first workshop that Josh did, we were told, “We do not want an app”. The surprises were challenging our grown-up thinking to look at things from a different perspective. I did not go to all the workshops but I did go to some of them. Hearing the different perspectives made the later ones not such a surprise.

For me, the other big thing that came out of it, which will certainly feed into our future guidance and communication, is how and what we communicated. The questions were not, “Do you want to make a complaint? How do you complain?” They were more like, “Who do you trust?”

We started with a blank slate. Some of what we got in the initial workshops was completely weird and wonderful, which is one of the great things about co-designing things with children. I asked open questions about what they would like to see. We spoke about what would make them most comfortable if they wanted to raise a concern, and who they would like to raise it with. Top of the list were cats and dogs. If we took literally what the children told me, we would be doing the complaint process in a river full of books and dolphins.

I drilled down by asking further follow-up questions, and the great thing about that is that at the core of every one of those quite fantastical asks was the kernel of truth that we have been able to put into the principles and the guidance that we are putting together. They want to speak to their cats and dogs because they know that those cats and dogs will not pass on their worries and concerns without their permission. That took us down the road of privacy and how important it is to make children feel safe and comfortable.

Are you transferring any of your learning from this process to the adults’ complaint process?

We identified a number of themes, such as trust, kindness, adaptability and balance, and we reflected those in the principles. The purpose of the principles is to give us a foundation, and the additional guidance that we are now in the process of writing will guide adults on how to apply the complaint process with a child-friendly lens.

Some additional or different things need to be done. There will be different approaches to making sure that the voice of the child is heard and that you act in their best interest. We also have to build in help not just for the public bodies that are delivering the complaint process, but for parents too. One of our first sets of guidance will be for parents, on their children’s rights and how they can support them and understand them. One of the positive things—and we have piloted this with a couple of bodies—is that children who have engaged with the complaint process through their parents have been happy to let their parents or responsible adult do it, but it is still about hearing their voice and involving them in the right way. A lot of the early guidance that we will be writing will not be aimed directly at children for that reason.

This is not meant to sound flippant, but there are not that many ways of approaching complaint handling. The fundamental principles are about what happened, what should have happened and whether the difference is down to maladministration. That is a fundamental process. For us, the challenge is about ensuring that we provide support for front-line services to handle complaints in that way. By the time a complaint reaches us, it should have been through a complaint process. Over and above that, every day is a school day and we have definitely learned things about communication that we will also weave into other things.

Good morning to the panel. Perhaps I can take the point about the right to express views—particularly with regard to article 12 of the UNCRC, on the right to be heard—a little bit further. First, how does the SPSO envisage the principles being used? Who would use them? Specifically with regard to article 12, how would you support children and young people in exercising their right to express their views?

The fact that the rights are in the principles means that we would expect public bodies to ensure that, as part of their approach to the complaint, they spoke to children. We will share—next week, I hope—the first draft of our guidance, which covers a whole range of things, including guidance on deciding whether to inform an adult if a child has made a complaint. What does informed consent mean? How do you seek it? How do you have the first discussion with the child and/or the responsible adult?

Instead of producing a process in which we say, “Do this, do this and do this”—which does not lend itself well to a rights-based approach—we are setting out all those areas, such as best interests, trust and confidentiality, and giving some guidance on how to apply them.

I will ask Josh Barnham to give you some feedback from the pilots, because they have been quite informative.

One key thing that came out of the pilots is that, in the vast majority of cases, children might choose not to give their views. In a lot of cases, they might be very happy to do so with their parents and have their parents be their voice. Now, I am talking about the numerical majority; that is not to say that we do not need a really robust process for children who might not have someone to do that for them. That is important, too.

One of the key things in the principles—and, indeed, a key theme that came out of all our co-design work—is the need for children to have someone whom they know and trust. Children told us that a big thing for them was to be able to choose whom they spoke to about their concerns or complaints—and they should be able to do so as far as is practicable. In different public bodies, that sort of thing will be easier or harder. If we are talking about a guidance teacher or their favourite teacher, it will probably be quite easy, but it might be a little trickier if it is a nurse that they might like and they are in a hospital setting. However, we have said in the guidance that, whenever possible, children should be given the choice about whom they speak to, because that is important in making them feel comfortable enough to share their views.

As Rosemary Agnew has said, the guidance contains sections on how you can make children more comfortable and the sorts of things that we need to do to make the whole thing feel less like a formal process and more like a conversation. That is one of the key things that came out.

It is important to add that, although we have co-designed this with children, we are continuing to engage with bodies and professionals that already do this work. We know that there is good practice out there, having engaged with local authority networks and chief social work officers.

Part of our role has been to strengthen that work and reassure people that a lot of the things that we are asking them to do will already have been embedded in their own processes, systems and good practice. We just want to make sure that they are consistently applied and that there is a voice for all children in the process.

Early on in this work, we focused on where children would normally be—say, a school environment. Actually, though, some children do not have access to that—they are in alternative environments. How do we tap into that? We knew the professional networks would be important in that, too.

We are taking a two-pronged approach here. First, we are ensuring that good practice is highlighted and are continuing to support that and, secondly, we are bringing the children’s voice in through everything that we are developing.

11:15  

What about your own processes and the staff in your own office? Have you changed anything as a result of the experiences that you have heard throughout this process? What training are you giving your own staff? There will be questions later about wider public bodies.

That piece of work is on-going. The principles were, for us, a milestone in a much longer project. I think that that work is going on in Andrew Sheridan’s team—I do not know, Andrew, whether you want to say something about that.

We have already started to look at how the complaints reviewers within our organisation are able to mirror what happens elsewhere, as happens in our current complaints-handling procedure. Josh Barnham and another officer on the team have been delivering internal sessions with the complaints reviewers, talking through how these principles will impact on any complaints that come in, what to look for and what the process is.

We have also started to develop some flow charts and process notes internally to ensure that, if a young person or an advocate contacts the SPSO, everybody across the organisation has a good basis of knowledge on how to take the matter through the system. As Rosemary Agnew has said, by the time that a complaint comes to us, it should have gone through a very similar process in whatever service the young person, the parent or the advocate is not happy with.

I have a final question. As you will know, going through a complaints process is difficult for anyone, and it can, in some circumstances, be quite traumatic, not just because the person has to relive what has happened but because of the nature of the process itself. What consideration have you given to the impact of the process on children and young people, and how will you take that into account in your organisation’s processes?

In a way, we started on that before we even started on the issue of children and young people. All of our complaint handlers and reviewers have had trauma-informed training, and we have used some of the excellent materials on the NHS Education for Scotland website on the impact of past trauma and how not to create trauma. That is part of the journey that we are on.

As far as children are concerned, though, there is a specific difference, which is to do with timing. Something that takes a couple of weeks or a couple of months will take up a significant part of a child’s time; if it takes a school term and a half to resolve, that represents a significant chunk of their schooling time. One of the things that we will continue to work on and engage with is advocacy in some of the support bodies to ensure that there is somebody else for a child to talk to and get support from.

Did you want to add anything, Andrew?

Something that we have been looking at is making sure, as Josh Barnham has said, that the child talks to somebody whom they trust and know. With the service in question, that is probably quite easy. By the time that they come to us, a trusted adult of some sort will, we hope, be involved in the process.

That is why we have been engaging with other networks. If the child is at school, the person whom they trust is likely to be somebody in the school—say, a teacher or a support assistant. If that is not the case, it might be somebody in the service that they are accessing. One bit of work that Josh Barnham did very early on was to make sure that that was in the guidance. We stayed away from specific language about what that person would be called; it is just somebody whom the child can trust and whom they can have as an advocate to support them. We are open for that to happen at any part of the process to ensure that they never have to go through it alone.

What you have touched on raises a much wider issue with regard to complaints and engagement with public services and access to justice—that is, the level and inconsistency of advocacy and support services. We have tried to engage as much as we can with the third sector, which provides some of these services in different contexts, but I think that that is part of the unknown that we are facing here.

I would love to sit here and say, “We have developed a perfect approach”, but, in reality, this is a new approach that is rights based, children focused and focused, too, on the UNCRC act, not just our own legislation. Our approach is that we will be as good as we can possibly be at any point in time, but we are open to learning and adapting, too. That is important, because we do not want something set in stone that we have to make work, simply because it has to work.

That brings me back full circle to the principles, which are the constant around which we will adapt the guidance and resources to continue to meet that set of rights. I should say that we have not covered all the rights in the UNCRC; instead, we have focused on those most appropriate to complaint handling.

Thank you—I appreciate that.

Good morning, and thank you for your time.

Building on what has already been said—and I appreciate the comments that have already been made about the process—can you say a bit more about what redress children and young people might have if the principles are not followed? What is the process for seeking redress?

Fundamentally, the redress comes through the complaint, which is handled in a rights-based context. In some cases, redress will not look that different from what it would look like in the usual complaint-handling process.

The fundamental principle of redress is to put somebody back where they were. That might mean putting in place, say, extra support in a school, requiring an educational authority to do some extra work to ensure that staff are properly trained or doing something directly for the child. We have to remember that it comes back to that fundamental principle. This is not compensatory redress that we are talking about; instead, it is about trying to put a child, or whoever is making the complaint for them, back to where they should have been—and, indeed, to ensure that they get the service that they should have been getting. That is fundamental, too.

This is also about learning and improvement, just as all complaint handling is at the moment. We do not want things to be the same for the next child that goes through the service in question. We also have some complaints of our own that we can draw on and which show us what redress can look like.

I do not know this for certain, but we might well try to have more resolution of complaints instead of having full-blown investigations and something that says, “This is what you do” at the end of it. A good example is some of the complaints that we have had on kinship care allowance, where we have managed to get the correct financial settlement for someone who did not get what they were entitled to—but we have done so much more quickly. That, I think, will be the big challenge. It is not so much what the redress is, but achieving it in a timescale that is more appropriate for children.

I do not know whether my colleagues want to add anything.

We are very much focused on learning and improvement in the public service that is complained about. We already have that within the SPSO; we work with whatever public body it is and always look to ensure that the next child, young person or adult who accesses that service is not subject to the same thing.

We engage continually. It is not a matter of saying, “Here are the findings”, and then moving away. If our team engages with a local authority, for example, they will continue to go back and support that engagement by giving guidance and support materials and having those discussions to ensure that there is an improvement for the next person who goes through the service. We are very much focussed on improving the service and, as Rosemary Agnew has said, making sure that people get the service that they should be getting.

Some of this is almost an emotional thing. The voice of the child must be heard and listened to, and part of the redress lies is demonstrating that that has happened. In the same way, what those who make a complaint want to hear is not just, “Here’s your answer—we’ve upheld it”, or “We’ve not upheld it”, but whether you did what you said you would do and whether things have been explained. That conversation is a much more important part of a child-friendly approach, instead of the more traditional approach of writing emails, sending letters and looking at documents. I honestly do not know how it will pan out, though.

So time will tell. Thank you.

I call Liam Kerr—I am sorry; I meant Bill Kidd.

I do believe that Liam, as a name, is similar to Bill.

I am really sorry.

I have a wee question on the practicalities of all this. How will public bodies be made aware of the revised principles? Do you liaise with public bodies across the field?

The short answer is yes, but I will pass that to my colleagues, if they would like to elaborate on “yes”.

We have been keeping all public bodies under our jurisdiction up to date with the project at each key stage. They have all been sent draft versions. They were all notified of the pilot and offered the opportunity to take part. If and when the principles are approved, we will let them all know, and we will set out very clearly in that communication exactly what our expectations are of how the principles should be used and what they need to do with them.

I would imagine that the public bodies will enable children and young people to relate to you more quickly. They will be able to spread the word, and they will be able to react in an appropriate manner if they are approached in any way.

The other point is that we realise that we cannot get our message across to every public service in the same depth. We have been trying to use networks to do that: we have engaged a lot with the Scottish Government and we know that it has other groups that are heavily involved what we are going through. We are sharing the process with them, step by step. We have on-going meetings so that everybody is kept up to pace.

For those harder-to-reach bodies or bodies that are not under our jurisdiction, we are talking to the Scottish Government and we are very clear that our material will be developed in such a way that services will be able to adapt it, if they choose to use it. We are making sure that it is future proofed and that we can adapt it as we go along. Other people will be able to use that if they wish.

We are also thinking about how we use our social media and how we will spread the word. We want to be able to say, “Here is a revision to this,” and, “This is where we are.” We are actively trying to use that medium to reach professionals as well as young people and parents.

That is very helpful. Thank you very much.

That was very swift, Mr Kidd, was it not?

It was.

I have a question on that exact point, which Andrew Sheridan is perhaps best placed to answer. Bill Kidd was asking about awareness, but will training be offered to help the public bodies under your remit to put into practice not only the principles of the approach but the ethos underlying it?

As we move forward with support and guidance across the piece—we are calling this phase 2—one of the materials will be a standalone training module that all public bodies can access, which will take them through the journey. We will explain the principles, the three types of complaints and why they are important. We will touch on the UNCRC and the articles that are impacted. That is the first piece of training that we would like to deliver to support public bodies.

The other important thing—I have said this a few times—is the engagement with the networks and with all the officers in our team. Josh Barnham delivered a piece to our team so that when people contact anyone in our team—it does not have to be Josh or myself—they will get a consistent answer. If any of our officers are at local government, speaking to chief social work officers or whatever it is, they will be using the same material and giving the same answer. There will be a consistent message about how to apply the principles and what they mean.

11:30  

That is very encouraging. Another question relates to where Bill Kidd was going. Bill asked you about making public bodies aware of the principles, but that begs a question about how children, young people, parents and carers will be made aware of the revised principles. Is the onus on the public bodies themselves to do that?

There is a bit of both there, honestly. Obviously, some of the materials, as Rosemary Agnew said, will be guidance for parents. We will circulate that through networks and schools, where we know we can get the most exposure. There will be child materials as well.

Across the piece, we find that schools are very good at this—they have been going through rights and the UNCRC—and it is the parents who we need to help first of all, because a lot of parents are not as up to speed on what the rights mean. There will be a bit of both. We will try to support the public bodies to support parents and children, and we will use our networks to try to support them as well. Josh Barnham might want to add a little bit to that.

Another interesting point to note is that children told us quite clearly through the co-design work that if it feels like they have to access a formal process, they will not do it. One of the core things with the process is trying to make it feel informal. We are very much focused on awareness-raising with front-line staff. We are thinking about all the guidance materials that we can make over the next year or so, to try to make as many teachers, paediatricians and so on aware of the change as possible, so that they can offer their guidance in a way that feels safe, manageable and informal, and feels like a conversation.

As well as training, one of the key things—because we are talking about potentially every front-line public servant in Scotland—is making the guidance as pick-up-and-play as possible. That is something that we have tried to do already, but we will do more on it in the next year and in further guidance materials. With the best will in the world, a single teacher might not use the guidance more than once a year or once every couple of years. Therefore, it is important that we raise awareness and that they have something they can go to as a touch point, as well as the training.

We have to keep reminding ourselves—you may have gathered that we are quite enthusiastic about this—that my powers and my remit are complaint handling, even though it is tempting to try to do everything related to UNCRC rights. We are trying to add the greatest value where we can.

The other thing that we have been doing, more informally, is talking to some of the ombudsmen from outside the UK—particularly some of the European ombudsmen and children’s rights ombudsmen. Part of what we will be doing next is going and having a wider look at what resources are already there. We recognise that we have a very limited resource to develop our guidance and we want to try to do as much as we can that is useful as soon as we can, because July when the UNCRC act comes into force, is not very far away.

I understand.

I just have a couple of questions. I appreciate the challenges that you have set out around developing the principles and the concept of balancing rights and making sure that it does not slip into, in effect, a hierarchy of rights, which is where many organisations have fallen foul. What, if any, international comparisons were you able to draw from when developing your principles?

I do not think it is about making comparisons so much as drawing on approaches that others have taken. Certainly, in the early stages, we talked to other ombudsmen, including, I think, the Irish Ombudsman for Children, and we talked about the approaches that they take. That was quite a good example, because it was the first one where we heard people say, “Actually, we do not get that many complaints from children”. That started making us think.

Some of the European children’s ombudsmen and rights ombudsmen take quite a different approach, because they have been doing it for a lot longer. What I have picked up from them is the approach that they take to the balancing of rights. Rather than focus on, say, this right or that right, they look at the best decision that involves children.

My colleagues should please feel free to add to this—Josh Barnham did a big literature review at the start of the process. One of the other things that I picked up is that the communication will not be the same, and we will probably need to communicate in a different way. For me, one of the pieces of learning is that although these are children’s rights, the principles are very, very informative for a rights-based approach for anybody’s rights of any sort. In that context, talking to human rights organisations has been quite interesting.

Personally, my communication has been more informal, as I have been talking to my network of international ombudsmen, particularly in Europe, but we have certainly had some consultation. I would say that we have learned a lot, and we have probably contributed. Fundamentally, our biggest difference is that we have recognised in our processes and our approach three different types of complaint. That is significant, because we have realised that adults making complaints about children’s services is at risk of being the bit of the system where children’s rights are least respected—not deliberately, but because it just does not happen that way.

Josh, given your literature review, I do not know whether you want to add to that.

That is fine. It was just a throwaway question.

You mentioned earlier that you have piloted the approach with a couple of bodies. Can you tell me a bit more about your roll-out processes and, in particular, what success looks like? How are you measuring that?

For the pilot, as I said earlier, we put out a call to all public bodies asking for volunteers. Aberdeen City Council has been the key partner for the pilot. It is doing a child-friendly cities bid at the moment, which was part of the driving force behind that. Effectively, the council has been using the guidance and the principles for all of its complaints involving children since June last year. I have been working quite closely with its complaints leads to understand the impact of that, what is happening and the resourcing impact, which has not been as serious as we first thought it might be, because so many children were happy to let their parents take the driving seat.

In terms of wider roll-out, because we have done those call-outs, many or all of the public bodies under our jurisdiction are aware that the change is coming and they are preparing for it already. Many have done hypothetical reviews to understand numbers. A lot of health boards have been running the numbers to understand how many complaints will be affected and what the likely impact will be.

Success will look like the principles being used consistently when children are involved. We will do a monitoring phase for the next six months or so after launch, to very closely monitor how and where they are being used and make sure that they are getting used. I think that complaints handlers will require to undergo quite a big cultural shift. As people have touched on already, we have seen that the sectors that are child focused, such as social work and education, are already using the principles for the most part and are very good at that, but complaints handlers sometimes sit quite separately. Things like a best-interest consideration are quite a new concept to a lot of complaints handlers. It is about us being very hands on and present to give advice in cases, and we are making sure that all public bodies are aware of that.

That probably goes back to the comment you just made about the different types of complaints and where the weaknesses are from a rights-based perspective.

There are the softer things that Andrew Sheridan mentioned, such as the training and advice that we give. We can see how much we are approached for that, how many times our training materials are accessed and how often we get enquiries. At the moment, success seems to be measured by how many times we are invited to go and tell everybody—not just in Scotland—about what we have been doing, because there is quite a lot of interest in it. Ultimately, the measures of success will be the ones that sit way beyond complaints, and they are good outcomes for children.

That is where we will draw this morning’s questions to an end. Thank you very much for coming. The public part of today’s meeting is now at an end and we will consider our final agenda items in private.

11:39 Meeting continued in private until 11:59.