The problem of persistence
Persistence may be a virtue for someone who has been let down by a public service. There are well-documented instances where significant public injustices were only highlighted and understood as a result of the persistence of a small group of individuals.
Yet unreasonable persistence is often seen as a significant problem in the complaints process. Organisations tell us they are finding it difficult to deal with. They are unsure what to do when someone has completed the complaints process but continues to:
- correspond on the same point
- repeatedly try to raise the same issue using new arguments or claims they have new information and is supplying copious documents
- pursue completed complaints by approaching elected representatives
- use more than one route to raise the same issue.
We have also been told they are unsure what to do when a person constantly questions the action and decisions of the body, but refuses to enter the formal complaints process and insists they are simply seeking clarification.
When we speak to organisations about this, they usually see it as a problem created by the individual. However:
The decision of an individual to disagree with you is legitimate, as is their decision to refer matters to elected representatives, or to pursue their disagreement by approaching external organisations and agencies. The use of their own energy and resource to continue to pursue an issue important to them is a matter purely for that individual.
This means it is not appropriate to use a policy to manage engagement when the only issue is that an individual is persistent.
- you are responsible for the resource and time your organisation puts into dealing with the individual; and
- if you have reached a final decision, you do not need to continue to explain that decision (and it may be unhelpful both to the organisation and to the individual to continue to try to do so).
You cannot prevent people disagreeing with you. You can and should prevent situations where unhelpful, circular correspondence occurs where you both restate the position in different ways meaning both you and the complainant get stuck.
There are steps which can be taken to help prevent people getting stuck in loops of contact and response which do not take the matter forward. You will see that most of these are also simply good complaints handling techniques.
The first of these is keeping the complaints process simple and ensuring it operates well.
If someone finds it difficult to access a process or make a complaint, you have already used their resources without any benefit to them.
If the answer to the complaint is no, it does not help to say this to someone three times at three different levels of management before they can ask an external organisation to look at the complaint.
The Model Complaints Handling Procedure (MCHP) limits the amount of times an individual needs to raise concerns before they can take those concerns to an independent external body. This helps them to move their complaint forwards.
Make sure you have a clear understanding of the complaint at the start of the process. A conversation where you talk through the complaint and agree what is important to that person and what you are looking at will help to avoid the situation where someone has to repeatedly complain because they don't feel you are getting the point.
It is also important at this stage to make it clear what you can and cannot achieve for that person. If they have unrealistic expectations or are unsure themselves what outcome they want, they are unlikely to be happy with any outcome.
A clear, direct and personalised answer can either help someone accept your decision or help them to identify where to focus their energy next if they remain unhappy. It makes it easier for both the organisation and the person to understand where any outstanding disagreement exists. The decision should make clear what evidence you have used, and what you have done to investigate their complaint. This may allow them to disagree with your decision while accepting the process was fair. This is particularly important if you need to have an ongoing relationship with the individual.
Organisations often avoid being clear when they have to say ‘no’, for fear the person may be disappointed. This can lead to confusion and generate further contact. If the answer is 'no', being clear and letting the complainant know sooner rather than later can help. It can be a good idea to call someone before they receive the written response. You can defer detailed questions until they have had a time to absorb the document but this forewarning can help them to actually absorb the information in the letter better, as they will have had a gap to deal with the disappointment. This means subsequent questions may be better framed and you can provide a better response. This can help you to focus on any genuine outstanding issues rather than getting stuck in a loop.
If you feel nervous about this consider using language like:
"I wanted to call to let you know I have reached my decision. Having spoken to you at the start of the process, I know you will find it disappointing.
I know you will have a lot of questions, I can give you a general idea of the reasons behind the decision but to be fair to you I would ask you to take your time to read through the letter and I will be happy to answer any more detailed questions then."
It is not possible to ensure that everyone who complains will agree with your decision. If you communicate well and are transparent, they are more likely to accept they have been treated fairly, even if they still disagree.
If someone disagrees with an organisation at the end of the process, there is no need to continue interaction unless there is some clearly defined benefit.
You may provide additional explanation or answer questions, but be sure that it is clarification that is being sought. If a person seeks clarification more than once, consider whether it is actually an attempt to reopen the complaints process.
It is appropriate to change the decision if the person has new evidence or a clear indication you have made an error – clarity in your decision will help you and the complainant to focus on this. However, if you are in contact more than two or three times after the process has concluded, and no change has been made to the decision, it is probably time to end the contact on that point.
Disagreement with your decision is not a ‘problem situation’ and you do not need to label it as unacceptable. You simply need to clearly refer the individual to the next stage in the process if there is one (most organisations have an independent body they can refer the complaint to) and let the person know you will not respond on that point again. At this point, if you have said you will not respond, you need to ensure that occurs.
The decision to engage once a process is concluded is completely within the discretion of the organisation and they can simply choose not to do so or to do so. Under the MCHP, organisations must refer a person to the SPSO at the end of stage 2; further engagement with the person cannot be used to defer SPSO’s involvement.
Often persistence is confused with other issues – an individual who is contacting a body too often or in an aggressive way. It is important to make sure you have identified what the problem is and respond to the specific action that is causing the problem. It is important to remember it is the engagement and the impact on your resource you need to deal with, and not the disagreement itself. It is good if people can agree with you, but everyone has the right to their own views.
A person is repeatedly asking questions or for more information but is refusing to enter the complaints process
You can use variations on the strategy for someone who is contacting you too much. You may need to make it clear you have done all you can and if they will not engage with the complaints process, you will no longer respond to questions about this. Remember they do still have their right to make FOI/ Data access requests – this can only apply to requests for comment or further clarification.
The person has asked an elected representative to make the same complaint on their behalf
You simply restate the decision you have already made to the elected representative and let them know you have informed the person of their rights to take this further. It is appropriate for a representative to support a person in making a complaint. However, once the decision has been made and unless the representative has new evidence or information, there is no reason to change your decision simply because someone is writing on their behalf.
The person has been contacting lots of different colleagues
My colleagues know I am dealing with your complaint and will refer to me to answer your questions. Can we agree if you have concerns you will contact me direct? If I am not here you can leave a message for me.
[If you are not receiving agreement you should add]
I don't want to have to restrict our contact so I would like to reach an agreement with you about contact. [If not achieved] I am sorry we are unable to agree today about this. I would like to give you some time to think about this a bit more and I will write to you explaining why I am concerned.
The person has completed the process but is now contacting different agencies to pursue their concerns. This may lead to multiple contacts from those agencies
It is appropriate to discuss the outcome with someone or to provide some clarification. You should not normally expect to have to do so more than once or twice. If you have done this, you should remind the person that the letter has informed them of their right to approach an independent body.
You may want to use variations of the following.
I hope this additional clarification is helpful. Our consideration of your complaint is now at an end and will not be reviewed by us further. We have told you of your right to approach the SPSO and I include their contact details.
Thank you for your letter. Your disagreement with our decision has been noted on file. Having done so, I have to explain that our consideration of your complaint is now at an end and this complaint will not be reviewed by us further. [referral to us or other body]
Thank you for your letter. I appreciate you remain disappointed with our decision. As you know, our consideration of your complaint is now at an end. We will be happy to consider any new complaints but will not consider this complaint again (in some cases it may help to detail exactly what that complaint is). In line with our normal procedures, if you write to us again on this matter, we will file your correspondence but will not acknowledge nor respond [or will simply respond with an acknowledgement]. This is because it is not helpful to let you think we will review this again.
The person has completed the complaints process but is unhappy and wants to raise the same issue with you again
You may have to respond to a number of different agencies – you need to make sure that your response is co-ordinated and that whatever route is used, your response is consistent. This would include consistently changed, if you do identify a problem as a result of external contact.
The person insists you need to consider new arguments or new evidence
The first time or the second time this happens, you should have a look to see if this is new and significant. It is not enough that this is new, it needs to make you feel your original decision has been undermined by this.
Organisations sometimes find it difficult to manage situations where a person uses multiple agencies or representatives to pursue a complaint.
You should always remember that it is we (as civic society) who have set up all of these systems, and individuals may be being signposted to several different organisations – for example 'we can deal with issue A but can't deal with issue B, that is the responsibility of C'.
Individuals do have the right to enlist the help of elected representatives.
In itself, there is no need to change the decision or undertake a new investigation because a new representative or organisation is involved. Good complaints handling should mean you can provide evidence of the investigation you have already undertaken.
Individuals can genuinely be concerned about the personal impact of complaining. Reassurance that there will be no negative impact may help.
Ultimately if the individual does not wish to engage with the complaints process, and advice and information has been given, the organisation will need to consider what additional benefit there may be from continuing to correspond. They should take into account the need to ensure fair and proportionate use of their own resources when they do so.
In some cases, it may be appropriate to refuse to deal with the issue any other way if the organisation has already attempted to deal with it as an enquiry and this has not resolved the matter. Organisations do need to let people know if they do not engage with the complaints process they may be losing certain rights. Complaints can normally only be brought to us within certain timescales. The MCHP also includes a time limit of six months for initially bringing a complaint.
This section has only addressed the issue of persistence in the context of a complaints process. This is a process with a clearly defined entry and exit point and almost all organisations in Scotland will also be able to signpost an individual to the next, external, stage if they remain unhappy.
Individuals and groups who don’t wish to complain about an individual decision or situation, but to campaign to change policy are in a different position. There is still a need to ensure fair and proportionate use of resource and engagement policies can be used to manage levels of contact. However, the decision not to engage with campaigners (whether individuals or groups) is ultimately a matter of judgement.
Staff in organisations need to be able to identify the difference between someone complaining and someone seeking to engage politically. It can be difficult to make the distinction, as some people identify they wish to change a law or policy following an unsuccessful complaint where they discover the law and policy behind the decision. It is important to keep complaints and the political process separate. Again, clarity in your letter with the decision can help individuals and groups be clearer themselves about what next steps they wish to take. It may also be helpful to check what they are trying to achieve in their contact.
When it is clear that individuals and groups are seeking to influence law and policy and are now campaigning, rather than complaining, it is appropriate to signpost them to political routes. For example, you can inform them how to contact elected representatives who may be in a position to make the changes they wish. It is a question for those elected representatives alone to decide how much time they wish to put into engaging with such individuals and groups.