About the SPSO's powers
The Ombudsman takes her authority from the Scottish Public Services Ombudsman Act 2002. This Act gives her the powers to investigate complaints - and discretion to investigate or not - about public bodies under her jurisdiction as listed under section 2 of the Act. The Ombudsman generally cannot investigate the actions of any public body not listed; however, she may be able to investigate actions taken on behalf of a listed body by non-listed organisations, e.g. contracted services.
The Act describes the types of complaints we can and cannot look at, and what we can and cannot do about them.
The matters that the Ombudsman is permitted to investigate (set out in section 5 of the Act) include any action or service failure by public bodies, if there is a claim that an injustice or hardship has occurred as a result of:
- failure in a service provided and/or
- failure to provide a service which it is the body's function to provide
- maladministration in relation to an action taken by the body.
In short, the SPSO can look at how an organisation reached its decision; for example, we can check that it followed the correct process – but if the decision was made properly we cannot question it.
Important exceptions to this are complaints about the NHS and social work: While the Ombudsman is generally restricted in questioning the merits of a properly made decision, she does have a mandate to question matters of clinical judgement, i.e. decisions of clinicians.
One overriding permission given by the Act is the Ombudsman's authority to consider any complaint about a public body's complaints handling procedure or any procedure set up by the body to review decisions, even when the underlying issue could not be considered.
Individual members of staff working for the SPSO have the mandate to perform the powers defined in the Act via the delegated authority granted by the Ombudsman.
Complaints at the SPSO
When we receive complaints about public services, they should previously have gone through the organisations' local complaints handling procedure. If they haven't, we will direct complainants back to the organisations they have concerns about.
We have detailed formation available about the Model Complaints Handling Procedures (MCHP) that we expect all public services in Scotland to adopt when handling complaints within their organisations, and about the guidance and support we can offer to organisation with regards to implementing the MCHP.
>> Find out more about the MCHP
Complaints process overview
The below diagram gives a brief overview of the complaints process, including when SPSO gets involved.
What to expect at the following complaint stages:
We aim to handle complaints within five working days of receiving them.
When we receive a complaint we will carry out checks to confirm that the complaint:
- is about something we can and should investigate
- is about an organisation we can investigate
- has completed the correct complaints procedure
- has arrived at our office within 12 months of the date the complainant had notice of the issues in the complaint
- has enough detail and paperwork for us to start work on it.
We also assess at this stage whether we should carry out an investigation; some cases are closed at this stage if we are able to resolve them with the organisation, or if we consider there would be no significant benefit, or achievable outcome, from a full investigation.
When assessing a complaint and determining whether to investigate it further, we may need to make initial enquiries to your organisation to request information to assist our assessment. In line with SPSO Act 2020 public bodies are expected to provide the evidence requested by the Ombudsman. We will do our best to minimise the number of enquiries we make at this stage of the process.
If we decide that we will not investigate a complaint, we will normally write to your organisation to inform you about this. We aim to do this within 80 working days.
If we decide that the complaint can and should be investigated, we will agree the complaint and outcomes sought with the complainant and notify your organisation of the 'heads of complaint' (the broad complaint headings) which define the matters we will be investigating; our investigation will cover all the issues that we consider fall under those headings.
At this point, we will ask your organisation for comments on the heads of complaint and also request relevant information and evidence. We ask that you provide relevant information and records to us within 20 working days. Some of the complaints we receive are complex and we may need to contact your organisation more than once to request information.
If we are having difficulty getting the information we need from your organisation, we will act in line with our Support and Intervention Policy to give you the chance to resolve the issue.
We will also ask you to review how your organisation handled the complaint and we will usually provide you with a complaint handling reflective learning form to complete and return to us. We expect organisations to share relevant parts of the complaint with any staff members complained about and to provide them with information about the complaint process, the support available and the timeframes of the complaint.
As part of our investigation, and depending on the type of complaint, we may also consider obtaining independent professional advice.
We aim to complete 85% of investigations within 12 months, although many are completed in less time. We will keep you updated about our progress and we will contact you approximately every eight weeks.
We share our findings with you and the complainant in a provisional decision letter. At this point, your organisation and the complainant have the opportunity to comment on any factual inaccuracies or provide any new information which is relevant to the decision.
Our process of sharing our provisional or draft decisions gives you, and the complainant, the opportunity to tell us if we have made a mistake, relied on inaccurate information, or if you have new information that you think changes our provisional findings. It is not an opportunity to provide evidence that was available and should have been provided during the investigation.
Once we have considered any comments received, we will conclude our investigation by issuing a final decision letter.
If we uphold a complaint, we will normally make a recommendation for your organisation to complete. We make three types of recommendation:
- Individual remedy - this will usually include an apology but we may also ask you to take other direct action to remedy the issue for the complainant. More information can be found in our Redress Policy.
- Learning and improvement remedy - we will ask you to take steps to ensure the same issue doesn’t recur.
- Complaints handling remedy - we will ask you to improve your complaints handling in line with the Model Complaints Handling Procedure. We have the power to make recommendations in relation to complaints handling, even if the overall complaint is not upheld.
If you have already taken action to fix the problem, or are in the process of doing so, we may not make a further recommendation but will ask to see evidence of this.
When making recommendations, we will provide your organisation with a deadline to complete them and provide documentary evidence to SPSO. If we find action has not been taken, we will contact you until we are satisfied that our recommendations have been implemented.
As required by the SPSO Act 2002, we will lay our findings before the Scottish Parliament and publish them externally to share learning. We will do this in two ways:
- For most investigated complaints, we will publish a decision report in the form of a short case summary. We include a draft of the summary in the provisional decision notice that we send to your organisation and the complainant
- In cases with wider public interest, we produce a full and detailed public investigation report. We send you and the complainant a draft of this report, and both parties have the opportunity to comment before publication.
Our published cases are available on our website under Our findings to tell other people about what we find and what we have asked organisations to do to put things right. Our investigations and recommendations can lead to improvements in public services as a whole, not just in your specific organisation.
Before we publish our decisions we anonymise them and remove any information that could be used to identify the person who made complaint as well as other individuals involved. We usually name the organisation involved. A notable exception are complaints about small primary care service organisations like GP practices, dentists or pharmacies. We will not name anyone from your organisation, unless we have good reasons. We may not publish a decision summary or report at all if we think what it says may identify someone.
Your organisation, and the complainant, can ask for a review of our final decision if you feel it should be changed. The grounds on which you can ask us to review our decision on a complaint are limited. We will not accept a request for a review if you simply disagree with the outcome of the complaint.
The Ombudsman will only change a decision if you:
- send new information and/or
- demonstrate information we used was wrong, and/or
- demonstrate we made a mistake
- it has an impact on the original decision.
You must send us your review request within six weeks of the date of our decision letter. Further information about the review process is available under Decision review process.
We encourage you to contact us at your earliest opportunity if you are unclear about any aspect of our investigation or if any timescales we have set would will cause undue difficulty.
Sharing information with the SPSO
We appreciate organisations will wish to reassure themselves that they can share information with the SPSO.
The SPSO has statutory tasks which require us to obtain information, including personal data.
- We must consider complaints and provide reasons if we decide not to investigate. At this stage, we may ask you for some more details or a copy of your stage 2 letter to confirm the position.
- We investigate complaints. At this stage, we will ask you for all the necessary evidence. We can require you to provide this if necessary and have the same power as the Court of Session to compel the production of evidence.
- We act as a complaints standards authority and the legislation requires organisations to cooperate with us when doing so.
We explain on our leaflets, on-line form and in our privacy notice that we will be contacting the organisation complained about and asking for information. People are encouraged to talk to us if they are concerned about this. We sometimes, if the data we access is likely to include special category data, issue a notification to the person whose information it is (or someone acting on their behalf) to let them know we will be seeking access to that data and giving them a clear opportunity to object. We may provide you with a copy of this to reassure you we are processing the data fairly, however, this is not a consent form and, technically, we do not require consent to access this information.
When you provide us with data, please let us know if you are providing anything you which requires sensitive or careful handling. Our powers allow us to release information for the purposes of an investigation but if you have informed us of any concerns you have about releasing information, we will be able to take that into account. In the event of a subject access or other information rights request, we would normally contact you to ask whether there is anything you would not like us to release and why. The best time to let us know about any concerns about the information you are providing, is at the time you provide it, as that concern can be stored with the information.
We know some of the information we ask for can be particularly sensitive and may relate to third parties. We are always very happy to talk to you about any concerns or questions you may have about our requests for information.
We are committed to protecting the privacy of those involved in our process. We will process the information your organisation provides to use in accordance with its intended purpose and in line with the Data Protection Act 2018 and the SPSO Act 2002. We may need to collect and share information with a number of sources to carry out our outcome of the investigation. When we do so we do not name individuals. We may also use information we collect to compile statistics and undertake research and analysis. There may be
public interest benefits in reusing information for these purposes. Information is completely anonymised.
Your organisation’s views are valuable to us, and we may contact you to invite you to take part in our surveys for research purposes.
To find out more about how we handle information and the rights of individuals whose information we hold, see our website. If you have any concerns about what we do, please let us know straight away.
Customer service standards
We are committed to offering a high standard of service to everyone who uses our service. We have detailed information available on our service standards and on what to do if you have a concern about the service you received.