Health complaints: learning from ombudsman investigations in practice

Our third guest blogger is Dr Gavin McBurnie. Gavin is an Honorary Research Fellow at Queen Margaret University and a former Director at the Parliamentary and Health Service Ombudsman. Gavin previously qualified as a GP and has also held various Director roles in the National Health Service in England and Scotland. He recently completed a PhD on this topic.

There are a number of truisms in life and sometimes they may even turn out to be true. ‘Yes, I will love you tomorrow’ and maybe they do. ‘The cheque is in the post’ and maybe it arrives. ‘The public-sector ombudsman contributes to system improvement’ and maybe it does. The claim of a dual role for the ombudsman (complaint handler and system improver) is made by academics, although it has been held to be problematic which may explain Gill’s (2012, p.181) finding that the evidence demonstrates a ‘mixed picture of the influence that the ombudsman may have in this area’. One factor that may indicate the potential success of the ombudsman in contributing to system improvement is its relationship with bodies in jurisdiction. This is particularly important where the ombudsman cannot compel compliance from bodies in jurisdiction with their recommendations.

The concept of motivational postures has been identified as a means of assessing the attitudes of people or organisations towards those who have power over them (Braithwaite, 2014) and has been validated in a wide range of diverse spheres including complaints to health ombudsman (Smith-Merry et al., 2017). Five motivational postures have been identified:

  • commitment, where a body recognises the authority of their oversight body,
  • capitulation, where bodies submit to their oversight body through fear of its powers (direct or indirect),
  • disengagement, where bodies consider their oversight body irrelevant,
  • gameplaying, where the body recognises the power of its oversight body but attempts to do their own thing while appearing to comply, and,
  • resistance, where the body demonstrates overt antagonism towards their oversight body.

In most organisations differing motivational postures will coexist and organisations and people can switch motivational postures dependent upon the actions of its oversight body. In the context of health complaint handling, research from Australia identified the existence of three sets of motivational postures exhibited by complaint managers within hospitals in Queensland and New South Wales towards their second-tier complaint organisations, those of commitment, disengagement and resistance (Smith-Merry et al., 2017). For my research I was interested in exploring whether similar findings would be found in Scotland and whether the motivational posture adopted by health boards in Scotland towards investigations by the Scottish Public Services Ombudsman (SPSO) would act as a barrier to learning.  In addition to interviewing seven staff at the SPSO I interviewed 22 staff based in three Scottish health boards. Interviewees represented staff from front line staff to board level, as well as complaints and corporate staff. The one staff group that was underrepresented in the interviews was medical staff.

Research findings – ‘commitment’ and ‘capitulation’

In my research on the motivational postures of three Scottish health boards towards the SPSO’s individual complaint investigations, I found two dominant motivational postures were prevalent: those of capitulation and commitment.

In relation to commitment, several of the health board participants noted the importance of the ombudsman institution, both as an external reviewer and in driving improvement.  While an upheld complaint could upset staff, if used properly, it could still be a source of learning.  This view was, perhaps, best described by one of the health board participants who said that the primary objective for health boards upon receipt of an SPSO report should be “to make the patient, the complainant, whoever it may be, feel better and feel that we’ve properly listened to the recommendations and are acting upon them”.

The other dominant motivational posture voiced by health board participants was that of capitulation. Here, participants used language such as seeing the SPSO as a threat.  Participants often expressed a fear of sanction if they were not seen to comply with the SPSO, the most feared of which related to risks to the health board’s reputation.  Another health board participant commented, “we have to deliver on the recommendations. And, if we don’t, they [the SPSO] don’t close the case, and they write to our Chief Executive, and that comes back to reputational issues.” This alleged fear towards the SPSO lead to some health board participants characterising the SPSO as being like ‘the grim reaper’ or ‘Big Brother’.

The likelihood that the recommendations made by an ombudsman will be implemented with commitment appears to be strongly influenced by a number of factors. Nearly all participants expressed dissatisfaction about the level of communication between them and the SPSO. The lack of communication between SPSO and health boards could leave the health board finding it difficult to respond appropriately to the SPSO. Some interviewees also argued that, on occasions, SPSO recommendations were unclear and did not take into sufficient account either the local and national context in which that health service operates.

I also found that on many occasions, health boards did not fully accept, or had concerns about, the clinical advice received by the SPSO. Disputes over the way ombudsman schemes use clinical advice is not unique to Scotland. In medicine, there can be legitimate differences in clinical judgment but health board participants in my research suggested that the SPSO did not take this sufficiently into account, sometimes over-relying on the clinical opinion of a single external adviser even when health boards provided expert clinical opinion supporting their actions. When this happens, it is likely that an upheld SPSO investigation is unlikely to be fully accepted by health board clinicians.

Going forward – lessons to be learnt

Ultimately, my research found that individuals within health boards would review individual SPSO investigation reports before making a decision on how much they accept. Should they accept the report there would be commitment to implementing the associated recommendations. However, where there was disagreement as to the findings the impetus for compliance would be a sense of capitulation – taking action principally to protect the reputation of the health board.

As stated earlier, the concept of motivational postures has been validated in a diverse range of spheres. It is important to note that the motivational postures that arise are specifically dependent upon the relationship between an oversight body and its bodies in jurisdiction, in this case the SPSO and Scottish health boards. Thus, while the approach can be used to examine the motivational postures that arise in other such power relationships, the motivational postures that are identified may well be different dependent upon the nature of the relationship between the oversight body and its bodies in jurisdiction.

Research on motivational postures suggest that the posture of capitulation can be addressed by oversight bodies. Braithwaite (2014, p917) argues that to ensure greater levels of commitment and lower levels of capitulation, ‘procedural reforms such as dealing with people more fairly, respectfully and openly’ should be implemented. In relation to my research, the SPSO needs to rethink its relationship with Scottish health boards, develop more meaningful ways to communicate with them and manage the concerns health boards may have about the SPSO’s clinical advice and understanding of its specific health context. And to be fair, at the time of the research, a new ombudsman had relatively recently taken up post at the SPSO and health board participants did acknowledge that they had seen some early hopeful signs that this was occurring.

So, back to the truism, an ombudsman may contribute to system improvement through individual complaint handling, but probably less than thought and only if the body in jurisdiction is disposed to agree.

If you are interested in reading Gavin’s PhD thesis in full then you can access it here.

References

Braithwaite, V. (2014) ‘Defiance and motivational postures’, in Weisburd, D. and Bruinsma, G. (eds.) Encyclopaedia of criminology and criminal justice, New York: Springer Science and Business Media pp.915-925.

Gill, C., (2012) ‘The impact of the Scottish Public Services Ombudsman on administrative decision-making in local authority housing departments’, Journal of Social Welfare and Family Law, 34(2), pp.197-217.

Smith-Merry, J., Walton, M., Healy, J. and Hobbs, C. (2017) ‘Responses by hospital complaints managers to recommendations for systemic reforms by health complaints commissions’, 41(5) Australian Health Review pp.527-532.

Being Complained About: Putting Research into Practice

As well as providing the findings of research which provides an evidence base for complaint resolution practice, this website aims to work collaboratively with practitioners, policymakers, and researchers to identify best practice. This includes inviting guest blogs so that views and opinions can be aired and shared.

We are pleased to post a guest blog from Shelley Hutton, Head of Stakeholder Relations at Places for People Scotland, a member of Places for People (an organisation comprising more than 20 housing providers, developers, property managers and care providers). Shelley is an experienced housing professional whose career spans three decades, much of which has involved work at Places for People Scotland relating to customer and staff experience with a focus on strengthening communication and relationships.

Over the many years I have worked in housing, around twenty of those have involved some involvement in complaints handling. Effective complaints handling has become a passion of mine. My experience has included ensuring compliance with the Scottish Public Services Ombudsman’s (SPSO) Model Complaint Handling Procedures (CHP) for housing associations from when it was first introduced in 2012. And again when it was revised last year.

More recently I supported the development of a single policy and procedure for six housing and service providers at Places for People (with the necessary Housing Ombudsman and SPSO caveats for cross country compliance).

The ‘Being Complained About’ research report (by Chris Gill, Carolyn Hirst, Jane Williams, and Maria Sapouna) was presented at a conference I attended at Queen Margaret University in December 2017. I was shocked at the findings of significant impact on the health, wellbeing, and work practice of the research participants. It resonated with me because the research included people who worked at Scottish housing associations.

Before the research I was singularly customer focused in my complaint handling service design. In hindsight I did not balance that with what my colleagues needed if they had been complained about.

I heard some key facts at the conference that I share at every opportunity I get. It reminds me and those I tell that it really matters how we handle complaints about our colleagues.

  • 71% of people complained about report their work practice being affected by a complaint
  • 67.2% of people complained about report their health and well-being being affected
  • 61.2% of people complained about report their attitude to service users being affected

The research findings cemented something for me. I could see in my workplace that some colleagues’ behaviour shifted, and attitudes altered slightly. The findings also showed that 66.7% of people complained about say they become more cautious in their future dealings with the public. What I also learned is that these negative consequences can be mitigated.

I shared what I had learned at the conference with colleagues. I ran focus groups to find out about their experience and to understand how we could mitigate the negative impact of being complained about at Places for People Scotland. I found out from my colleagues how peer and manager support and good communication was key to making a positive difference when someone was complained about.

I was pleased to find out shortly after that Carolyn Hirst and Chris Gill were publishing guidance – ‘Being Complained About Good Practice Principles and Guidelines (which can be accessed here) – to steer organisations on this. We had an opportunity to feed into the drafting and Places for People Scotland became the first housing association in Scotland to adopt this guidance

As a pilot organisation Carolyn Hirst helped to launch the guidance at Places for People Scotland. This included a staff survey and workshops with middle managers. She also interviewed some of our colleagues to aid our collective understanding of the needs of people who had been complained about and to help embed change. It was very valuable to us that we were able to adapt the guidance for our own use to ensure it fitted with our HR practice.

Two of my colleagues helped to develop internal leaflets from the guidance we adopted; one to guide colleagues on what to do and what to expect if they have been complained about and a version for investigating managers. They summarise the information from the guidance into easy to read guides. This matches the sort of information we provide to customers.

This guidance now forms part of the Places for People Complaints Procedures. We add the guidance to the complaint file for easy reference if a manager is investigating a complaint about a colleague. We would like to find out from colleagues about their general awareness of the support available, if the support in place works for them and if it has resulted in better outcomes and a positive complaints handling culture. This is especially important as we are seeing more complaints about colleagues across the sector.

The research showed that it is important for staff to be listened to, be heard, and be able to give their perspective on what has happened. The subsequent guidance gives a framework for this. This practice matches how we treat customers who have complained.

Because we adopted the guidance early, we were well prepared for the amendments made by the SPSO to the CHP in 2021 on complaints involving staff. Our culture and mind set had already shifted.

We believe that ‘places work when they work for everyone’ and adding the Being Complained About Guidance to our complaints handling practice ensures this is the case.

Shelley Hutton, 3 March 2022

More than a moan? Complaints, whistleblowing, and the ongoing need for independent complaint handling in social care

As well as providing the findings of research which provides an evidence base for complaint resolution practice, this website aims to work collaboratively with practitioners, policymakers, and researchers to identify best practice. This includes inviting guest blogs so that views and opinions can be aired and shared.

We are pleased to post our first guest blog from Henry Mathias. As Head of Professional Standards and Practice at the Care Inspectorate, Henry Mathias has a lead role in complaints.  However, this guest blog has been written from a personal perspective, drawing on his extensive experience in the field of care regulation, rather than representing the views of the Care Inspectorate.

Over 20 years ago, when asking about the new Public Interest Disclosure Act 1998 (whistleblowing legislation) while out on inspection, I remember a nursery manager’s response was to reassure me that the children all knew to sit down on the gym mat whenever she blew her whistle. A lot of water has passed under the bridge since then and awareness of whistleblowing has increased significantly, but are whistleblowers any better supported and protected? And with the care system in Scotland currently being redesigned, what changes to complaint handling are needed in order to improve people’s experiences of care?

The value of independent complaint handling

I’ve been inspecting social care long enough now to have witnessed several swings of the regulatory pendulum, with major structural reform taking place approximately every 10 years. Pulling the levers to hand is a lot more achievable for any government compared to the long-term investment needed to improve the quality of care from the bottom up. When the regulation of care was last restructured in 2010, the Scottish Parliament resisted calls for the new Care Inspectorate (Scotland’s social care regulator) to be divested of its predecessor’s power to directly investigate without complainants first having to go through the care service provider’s procedure. This decision recognised the particular vulnerability of people experiencing services and the findings from the succession of inquiries into chronic failures across social care.

More than a decade later, the Care Inspectorate continues to value and in many ways rely on complaints in order to protect people experiencing services, with specialist complaints teams separate from inspection. A complaint allows a deep dive into an individual’s actual lived experience as opposed to the planned inspection of a whole service. Complaints are an effective safeguarding tool, with a significant proportion of enforcement resulting from complaints rather than routine inspections. And the number of complaints rises year on year, with over 5000 complaints now being made annually, with complaints from families regarding the private care of their elderly relative being the most common. This has built over time and in my view reflects the accessibility and continuity of the regulator’s complaint function. In Scotland, families and staff know that they can complain to the Care Inspectorate about their local social care service and that improvements are likely to result.

Gaps and messy joins in oversight of the care system

However, the public assurance afforded by an independent regulator directly handling and investigating complaints like this only applies to a small part of the overall health and social care system. Arrangements for responding to complaints about the NHS or social work look very different. Even for regulated social care, while the path for people complaining about an individual service is clear and well-trodden, it’s not the same for people unhappy about how an individual’s needs have been assessed or the choice of services available to meet these needs within budget. Currently there is direct recourse to a statutory complaints body for the quality of a registered service, but not for how that service has been planned or commissioned. For example, take care at home as the most common service type experienced by older people. You can complain about the quality of care provided by your registered service, but not that only private providers are available, that they have been commissioned to carry out 15-minute tasks, or that staff providing your care earn less than the minimum wage because their travel between visits is unpaid.

Bringing together colleagues from Healthcare Improvement Scotland, the Care Inspectorate and the Scottish Public Services Ombudsman, we’ve recently been mapping the patchwork of different arrangements for complaints across the care system in Scotland, covering health, social work, and social care. That this was not a straightforward exercise for us professionals brought it home just how confusing our current system must be for complainants. And then we started looking at the messy joins between our professional domains and the complexity of commissioning within an increasingly integrated and multidisciplinary health and social care landscape…

The case for change

Responses to the Scottish Government’s consultation on a new National Care Service indicate widespread support for a new system for adult social care complaints, possibly underpinned by a Commissioner for community health and care. Calls for at least a more accessible publicly facing portal to help people navigate the care maze now seem overwhelming. Reform of the Public Interest Disclosure Act was already on the cards in relation to whistleblowing, but Covid has given the case for more consistent and integrated complaint handling across the care system considerable momentum.

The case for extending some form of independent statutory oversight of complaints across the whole care system, including powers of direct investigation, seems strong. The historical litany of catastrophic failures demonstrates that sufficient change is unlikely to emerge from within the different sectors and structures. Whether from health, social care or social work, we all have our own landmark cases like Mid Staffs, Winterbourne View and Miss X that haunt us, with each national inquiry usually matched by less prominent scandals on our local patch. While the circumstances vary, the lessons are remarkably consistent: understand how power operates and can be effectively challenged within each workplace culture and engage outwith your professional silo. And above all, take heed of families, anonymous complaints, and whistleblowers.

A quick scan of recent media coverage indicates that these systemic problems are far from historical. The trauma of families with elderly relatives experiencing social care has been exacerbated during the pandemic and they were forced to set up their own group and stand outside Parliament to get their voices heard. At the same time, whistleblowers continue to lack sufficient protection, as illustrated by the treatment of staff blowing the whistle on failures to address allegations of serial abuse by a manager at the City of Edinburgh Council Social Work Department and a culture of bullying at NHS Highland. 

Mapping a way forward

But what opportunities and threats are presented by establishing a truly integrated level playing field, with the response to complaints reflecting risk to individual health and wellbeing rather than professional structures and the service setting? How could a National Care Service help simplify the current arrangements rather than adding a further layer of complexity? Should there be an Independent National Whistleblowing Officer for social work as well as health?  

My view is that the evidence seems to point to the need for an external watchdog, with teeth. Being a dyed in the wool regulator, I guess I would say that. Ultimately investigation by an external regulator should be a tool of last resort, an expensive and crude instrument of change. Indeed, most complaints are dealt with effectively via front line resolution as close to the ground as possible. The arrival of inspectors can also be threatening to professionals providing care and fail to bring out the best in people.

If current standards being experienced were nearer to those set out in the Health and Social Care Standards (which state what people should expect when using health, social care or social work services in Scotland), then I could see merit in the new structure prioritising working alongside providers to support internal assurance and the application of improvement methodology over old-school regulation. Or a watchdog only looking at the most serious complaints after exhausting the provider’s own complaints procedure. Given what we know about current standards, however, with secret smart phone recording providing a constant reality check, we might regret dropping the big stick. When things go badly wrong in care, and there’s no evidence to indicate that this will be stopping any time soon, then the public, politicians and the media demand a credible, independent scrutiny body to hold professionals to account and provide public assurance.

Henry Mathias, 9 February 2022.

Supporting complaint handlers to act fairly

In this blog post Jane Williams discusses some recently published research on how complaint handlers working can be supported to resolve complaints fairly.

As a Senior Lecturer in the Queen Margaret University Business School I do lots of work with complaints handlers working in many sectors – health, local government, central government, ombudsman schemes and in the private sector.  I am always struck by how many skills are needed to deal with complaints well.  You need to be a fabulous communicator, sensitive and empathic, a good investigator as well as having great analytical skills.  You also need to be pretty robust as many of your decisions are going to leave one party unhappy. 

With my colleagues Chris Gill and Gavin McBurnie I recently undertook some research with complaint handlers working in financial services to explore how they interpret the requirement to treat customers fairly.   It was a small case study project and we were interested in finding out how complaint handlers, who also work for the organisation being complained about, approach fairness. 

I think many of our findings are likely to resonate with complaint handlers more generally.

First, while complaint handlers took personal responsibility for decisions on fairness. Their individual constructions of fairness were strongly influenced by the organisational framework and institutional mechanisms around them.  In our case study, this included structural mechanisms such as locating these teams outside the usual structure and giving them the status, space and time to explore what is the fair thing to do, including stepping outside policy where necessary.  Organisational values were also strongly embedded around doing the right thing.

Second, in terms of different constructions to fairness we identified two different approaches by our complaint handlers.  Some took a strong ethical and moral dimension to their complaint handling. Others took a more pragmatic, problem solving approach,  keen to understand what went wrong and provide an explanation and using a ‘family and friends test’ to help them work out what a fair solution would be.  We characterised our complaint handlers as either “philosophers” or “problem solvers” In practice the result was often the same.

Third, our data highlighted the active role teams play in supporting complaint handlers to act fairly.  The complaint handlers repeatedly highlighted the importance of dialogue with their colleagues in terms of developing their thinking and in supporting them to make difficult decisions.  These discussions were facilitated informally within teams and by institutional structures which formalised this process. In this context individual differences in approaches were celebrated.  Team members who were known to take different approaches were actively sought out.  Team conversations became reflective spaces where dialogue was able to take place giving individual complaint handlers the agency to act fairly.

While Covid-19 has changed the way that all of us have worked in the last 18 months, our findings, while exploratory, point to a number of relatively straight forward ways that organisations can support complaint handlers to resolve complaints fairly.  It highlights the value in ensuring that complaints teams embrace diversity and a range of different voices.  Giving complaint handlers a high degree of autonomy and then ensuring that the working environment supports discussion and debate and building time and space for that into the design of complaint processes should also be looked at.

This research has also left us with a number of unanswered questions. For a start, we know very little about who complaint handlers are – their demographics, their experience or the ethical frameworks they use.   In addition while we found that institutional factors, individual complaint handler values and team support and dialogue all influenced fairness decisions the nature of those relationships is not yet clear.    In our case study individual constructions of fairness were strongly influenced by centralised directives on what fairness is.  Is this due to the existence of a high profile ombudsman scheme and an explicit regulatory requirement to treat customers fairly in the financial industry?  Would our findings differ for complaint handlers in the public sector or if the complaint handlers were working for an external ADR body?  We would love to hear from complaint handlers on how you think we should take this forward. 

Jane Williams

Reference

Williams, J., Gill, C., McBurnie, G. 2021. “It’s the most ethical job I have ever had”:  Complaint handling and fair decision making. International Journal of Business Governance and Ethics. DOI: 10.1504/IJBGE.2021.10035729

For a summary of the findings see: 

Williams, J., Gill, C., McBurnie, G. 2020. Complaint handling and fair decision making in the financial industry.  QMU Working paper series. Available from:  https://www.qmu.ac.uk/research-and-knowledge-exchange/working-paper-series/20201/

Bridging the gap: translating learning into practice

On 17 November 2021, we were delighted to hold our second webinar on complaint handling in adult social care and social housing. The theme of the webinar was “Bridging the gap: translating learning into practice”. The webinar followed on from the event we held earlier in the year (summaries of that event can be found here and here). The webinar was attended by over 20 delegates, including representatives of local authorities, housing associations, third sector organisations, regulators, ombuds, and other government bodies.

Presentations

In this post, we want to share the learning and discussions that emerged from the webinar. The first part of the session involved three excellent presentations from Lindsey Poole, Director of the Advice Services Alliance; Helen Wyatt, Strategic Customer Relations Manager for Devon County Council; and Dr Alex Gillespie, Associate Professor in Psychological & Behavioural Science at the London School of Economics.

Lindsey Poole discussed the history and role of the advice sector, noting the types of issues that were commonly raised by clients. She outlined the challenges facing the advice sector, including those relating to funding and service delivery, and the potential for overcoming these. Lindsey concluded that the advice sector could act as a “canary in the goldmine” and could work with others to highlight where problems needed to be addressed and lessons learned.

Helen Wyatt presented a case study exploring how Devon County Council had learned from a complaint that had been investigated by the Local Government and Social Care Ombudsman. Lessons from the case included the importance of investing time to consider complaints carefully, proceeding slowly to achieve culture change, and not losing sight of the complainant.

Alex Gillespie outlined three research projects conducted in healthcare settings, which demonstrated the value of complaints, the potential for them to be analysed systematically, and their ability to reveal data not otherwise available. He noted that challenges around learning included the fact that benefits to organisations are long term, upfront investment is required, and organisational learning is difficult to achieve.

The slides from the event are available below and a recording of the presentations is available here.

Key themes

The presentations were followed by small group discussions, which highlighted the following themes:

  • The relationship between ombuds/ regulators/ inspectors and learning from complaints. In many cases, having an external impetus on a complaint facilitated learning by requiring that attention and resources be devoted to wider learning rather than “fire-fighting” individual complaints and primary service delivery. Learning may already have been identified by the organisation, but the pressure from an external source meant that this learning was then given more priority and was easier to implement. There is, however, a need for external scrutiny bodies to work collaboratively with service providers – where processes are lengthy and gruelling, this can limit what might be learnt from a complaint. Collaboration could also ensure recommendations were realistic and implementable.
  • Questions around resourcing learning. There was agreement that there were insufficient resources (including time and people) devoted to learning, despite the fact that this could lead to savings where systemic issues were identified and remedied. The opportunity to pause and reflect on complaints was often lacking in practice, as attention would inevitably be drawn to pressing and immediate problems. It was suggested that ring-fencing resources and having dedicated individuals/ teams devoted to learning could be one way of ensuring that learning stayed in focus.
  • The specific value of complaints compared with other forms of scrutiny. Inquiries into catastrophic failures in both adult social care and social housing have in common that these failures were preceded by complaints which were ignored or not recognised by service providers. Complaints are a source of data that frequently pick up issues that are less easy to spot in more formal regulatory, audit, and inspection processes. Despite this, complaint handling tends to be under-resourced and under-valued in relation to other forms of scrutiny and there was a need to raise the status and understanding of complaints as a powerful vehicle for learning in public services.
  • The place of complaint handling within organisations. Where complaint teams were located within organisations and their degree of authority was important in terms of enabling learning to take place. Where complaints teams were in a position to influence the broader organisation, this could lead to beneficial change. It was important also to ensure that complaints were considered at governance level, and this had to go beyond reporting, to ensure genuine understanding and ownership. Generally, there was a need for complaints to be seen as a more important part of service providers’ work, and some recent reforms in housing in England and social care in Scotland indicated a renewed emphasis on the importance of complaints.
  • The need for systemic approaches. There was some scepticism about how much could be learned from dealing with individual complaints, rather than looking at groups of complaints to identify systemic problems. More systemic approaches could also move complaints away from an adversarial and potentially antagonistic paradigm, so that the focus turned towards identifying learning. Some ombuds and regulators were increasingly looking to work in this way and had benefitted from the amendment of existing legislative restrictions. Working systemically could also involve seeking to learn collaboratively with third sector organisations and advocacy bodies.
  • Integration and joint service delivery. The issue of “messy joins” was discussed, where service delivery was fragmented, or responsibility split among a range of actors. This could be a source of complaints and could also act as an impediment to learning taking place. Outsourcing of services was a particular issue in terms of muddying responsibilities and lines of accountability. Generally, who needed to learn what lessons was an issue and even when lessons were identified it was not always possible to ensure these were implemented.
  • Social media. Social media was recognised as simply another channel by which citizens could contact public services and make a complaint.  Complaints were usually signposted to alternative ways to make their complaint. 
  • Culture. In some organisations there was still too much emphasis on individual responsibility. There was a tendency to focus on the easy wins rather than those complaints which raised more challenging issues, cutting across organisations or requiring additional resources.  At times the desire for a learning culture floundered on internal barriers resulting in an ‘internal postcode lottery’. Constant changes in policy and procedure meant that some issues got lost in translation. Complaints professional networks were valued as a means of support and in helping share learning. Complaint handlers were keen to collaborate with the advice sector. Advocacy bodies play an important role in supporting citizens to make complaints. 

Next steps

Our aim in holding this event was to connect practitioners, policymakers and academics interested in improving complaint handling in adult social care and social housing. We are particularly interested in identifying issues at the cutting edge of practice that present persistent problems and which would benefit from research. We want to work collaboratively to conduct such research and to convert this into real world improvements in complaint systems. In pursuit of this agenda, we have applied for funding to conduct a large scale research project. We expect to know the outcome of our application in April and we will hold a further event in Spring 2022. If you are interested in attending and have not attended one of our events to date, please email chris.gill@glasgow.ac.uk and we will add you to our mailing list for the event.

Participation in complaints

In this post Jane Williams discusses some research she completed with Chris Gill and Naomi Creutzfeldt which highlights the value consumers attach to being able to participate effectively in complaint resolution.  

In 2017 we carried undertook research for research Consumer Advice on the UK’s current approach to ADR ‘Confusion, gaps and overlaps:  A consumer perspective on the UK’s alternative dispute resolution between consumers and businesses’. Revisiting this research is timely in light of the UK Government’s current consultation on reforming competition and consumer policy which includes proposals for improving ADR. For the purposes of this post though I wanted to focus on how ‘participation’ emerged as an important theme from our interview data and its implications for resolving complaints.

Consumer complaints are often described as being ‘low value’ and ‘transactional’. The assumption can be that these consumers are more focused on getting their dispute resolved cheaply and quickly than other factors. Our research suggests that this is not the case and consumers have expectations of high levels of good quality participation in their interactions with consumer ADR bodies. 

We already knew from ‘justice theory’ that a consumer’s willingness to accept the decision of the complaints handling body will depend on: (1) whether they think the outcome itself is fair (and as expected this is very much influenced by whether the complaint has been decided in their favour); (2) whether they think the process used is fair; and (3) whether they also think the interactional elements are fair.  

We also knew from Naomi Creutzfeldt’s (2018) work that users’ perceptions of ADR are more highly correlated with outcome than in other in other contexts including public services.   

We therefore used a ‘ladder of legal participation’ developed by McKeever (2013) as a framework to get a better understanding of the level of participation consumers are looking for when using consumer ADR. This framework has been developed in the context of tribunals in the UK and we felt that there were some similarities in the types of disputes these forms of dispute resolution both cover. McKeever says that ‘Central to this idea of participation is the notion of power: power can be withheld, so that power-holders retain control, or it can be shared so that individual citizens may be empowered.’ The ‘ladder of legal participation’ recognises three main levels as shown in the Figure below – participation, tokenism and non-participation.

Figure 1 McKeever’s Ladder of Legal Participation

Using this framework we found that consumers were looking for high levels of participation despite the apparent low value of their claims. Satisfied consumers emphasised the importance of participation in explaining their positive experience. They highlighted the value they placed in ease of contact and simply being able to talk to someone at the scheme and not having to rely on email contact in order to reach a shared understanding of the complaint.

In contrast those whose experiences were more negative focused on the exact opposite.  Those who felt that the participation was ‘tokenistic’ highlighted how time delays were seen as ‘obstructive’ and that referral fatigue was also evident when it came to asking for decisions to be reviewed. Relying on written communication, use of jargon and the recommendation of inappropriate remedies such as a credit on an account or a credit note also contributed to a sense of ‘tokenism’ in terms of the level of participation.

Some of our interviewees did not feel they had been able to effectively participate at all. Communicating using terminology similar to the organisation being complained about led to a perception of ‘them and us’.  They highlighted a perceived ‘lack of interest in their complaint’ and shock and surprise that the body was not able to do more. This perception existed despite the fact that some of the complaints had been upheld either in full or in part.

Going forward what lessons can be learnt from this? Consumers clearly have high expectations around participation and organisations may wonder how they can satisfy this while also being realistic about the resource constraints they have to work within. 

Where expectations are unrealistic then it is, of course, reasonable for organisations to consider how those expectations can be reduced. ‘Managing expectations’ therefore has to be more than just saying no and needs to include understanding what consumers want and ensuring that the complaints systems we design take account of them.     

In my view, a focus on participation provides a helpful way that organisations and individual complaint handlers can think about what is important to people and how to incorporate a more participatory approach to complaint systems. This includes designing complaint systems that recognise the complexity and individuality of complaints and encourages dialogue. It includes ensuring that complaint handlers are not limited or constrained by what the system allows them to do. A more participatory approach also extends to those who have been complained about as well as complaint handlers and there will be more on these topics in future posts.   

References

Creutzfeldt, N. Ombudsmen and ADR: A Comparative Study of Informal Justice in Europe (2018).

Gill, C., Creutzfeldt, N., Williams, J., O’Neil S., and Vivian, N.  2017.  Confusion, gaps and overlaps:  A consumer perspective on the UK’s alternative dispute resolution between consumers and businesses   Available online from https://www.citizensadvice.org.uk/Global/CitizensAdvice/Consumer%20publications/Confusiongapsandoverlaps-Original1.docx.pdf 

McKeever, G. 2013 a Ladder of Legal Participation for Tribunal Users.  Public Law 575. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3523954

Williams, J., Gill, C., Creutzfeldt, N., and Vivian N.  2020.  Participation as a framework for analysing consumers’ experiences of alternative dispute resolution. 47(2)  Journal of Law and Society pp. 271-297. DOI:10.1111/jols.12224 

Transforming complaint resolution

Welcome to the first blog on the Transforming Complaint Resolution website!

The website (www.complaintresolution.co.uk) was created by Chris Gill, Carolyn Hirst, and Jane Williams. Collectively we are academics, researchers, and practitioners who have an interest in complaint handling, conflict resolution, and administrative justice. You can find out more about who we are in the ‘About Us’ section of the website.

Together we believe that much of the transformational potential of complaints remains unrealised. And our purpose is to carry out research that provides an evidence base for complaint resolution practice and to work collaboratively with practitioners and policymakers to identify best practice.

So the reason for creating this website is to bring together and share the findings of research we have conducted (sometimes with other colleagues) on complaint resolution over a number of years. This has included looking at complaints in public services, in relation to consumer problems, and in relation to external complaint handling by ombuds and others.

When you access the website, the tabs at the top of the home page let you access the website resources. These currently provide details of research on the following topics:

  • Being Complained About
  • User Experiences
  • Fairness
  • Access to Justice
  • Dispute System Design
  • Ombuds Reform
  • Parliamentary Casework
  • Complaint Data
  • Outcome of Complaints

And we will feature new and emerging work under the ‘Current Research’ Tab. You will see this now has information on a research project we are developing with others to look into the complaint systems in the adult social care and social housing sectors in Scotland and England.

We want the website content to have both academic interest and practical application. And we hope that its resources will have relevance to those dealing with and making complaints in a wide range of public, private and third-sector organisations and services, as well as to ombuds institutions, professional and advisory bodies, regulators, and academics.

We will be adding to the resources on this website over the coming months – please subscribe to the blog to keep up to date!