About the SPSO's powers
The Ombudsman takes his authority from the Scottish Public Services Ombudsman Act 2002. This Act gives him the powers to investigate complaints - and discretion to investigate or not - about public bodies under his jurisdiction as listed under section 2 of the Act. The Ombudsman generally cannot investigate the actions of any public body not listed; however, he 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, he 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.
Stage 1 Assessment and Guidance
We aim to carry out an initial assessment of complaints within five working days of receiving them. At this stage, we check whether the complaint has completed the complaints process or if it should be handled by another organisation. If it should be directed elsewhere, we will signpost the person to the correct organisation. We may also signpost the person back to you with advice on how to complete your complaints procedure.
Stage 2 Triage and Early Decision
We will carry out checks to confirm that the complaint is one we can, and will, consider further. This may include:
- checking the complaint against our jurisdiction tests
- assessing whether a quick resolution may be possible
- returning the complaint to you if we consider that further work is needed (for example, if issues have been missed or explanations have not been provided)
The aim of this stage is to make quick decisions where jurisdiction or other issues are clear. We may contact you to request support with achieving a resolution. We may also write to you with our decision if we consider the matter can be closed at this stage.
Stage 3 Preliminary Investigation
Complaints that need further work will move to our preliminary investigation stage. At this point, we continue to make our standard jurisdictional checks to confirm whether the complaint:
- is about something we can and should investigate
- relates to an organisation we can investigate
- has completed the correct complaints procedure
- has been brought to us within 12 months of the date the complainant became aware of the issues
- contains enough information and documentation for us to begin our work
We also assess at this stage whether we should carry out a full investigation. Many cases are closed at this point if we can resolve them with the organisation, or if we consider that a full investigation would offer no significant benefit or achievable outcome.
Where possible, we work collaboratively with customers and organisations to help resolve complaints. This can lead to quicker or better outcomes for customers, or support learning for organisations, without the need for a formal investigation. However, this always depends on the circumstances of each individual case.
When assessing a complaint and deciding whether to investigate further, we may need to make enquiries to your organisation to request information. We will aim to keep these enquiries to a minimum. We may also seek independent professional advice at this stage.
If we decide not to investigate a complaint, we will normally write to your organisation to inform you. Our aim is to do this within 80 working days, although this may sometimes take longer.
Stage 4 Investigation
If we decide that a complaint can and should be investigated, we will agree the complaint and the outcomes sought with the complainant. We will then notify your organisation of the ‘heads of complaint’ (the broad complaint headings) that define the matters we will investigate. Our investigation will cover all issues that fall within those headings.
At this stage, we will:
- ask your organisation for comments on the heads of complaint
- request relevant information and evidence
We ask that you provide the requested records and information within 20 working days. Some complaints 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. In most cases, we will send you a complaint handling reflective learning form to complete and return. 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.
Depending on the nature of the complaint, we may also seek independent professional advice as part of our investigation.
We aim to complete 85% of investigations within 12 months, although many are completed sooner. We will keep you updated on progress and will contact you approximately every eight weeks.
Related reading
You can find more information about our decisions under the drop downs below.
We will usually share our findings with you and the complainant in a provisional decision letter. In some cases, where we consider there to be a public interest, we may issue a draft public report instead. At this stage, your organisation and the complainant will have the opportunity to comment on any factual inaccuracies or provide any new, relevant information.
Our process for sharing provisional or draft decisions allows both you and the complainant to tell us if we have made an error, relied on inaccurate information, or if you have new information that may change our provisional findings.
It is not an opportunity to submit evidence that was previously 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 or a final public report.
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 does not recur
- complaints handling remedy – we will ask you to improve your complaints handling in line with the Model Complaints Handling Procedure. We can make recommendations on 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 we will ask for evidence of this.
When we make recommendations, we will give your organisation a deadline for completion and ask you to provide documentary evidence to the SPSO. If we find that action has not been taken, we will continue to contact you until we are satisfied that our recommendations have been implemented.
Related reading
As required by the SPSO Act 2002, we will lay our findings before the Scottish Parliament and publish them externally to support learning. We do this in two ways:
- For most investigated complaints, we publish a decision report in the form of a short case summary. A draft of this summary is included with the provisional decision notice issued to your organisation and the complainant.
- For cases with wider public interest, we produce a full and detailed public investigation report. We share a draft with both your organisation and the complainant, and each party has the opportunity to comment before publication.
Our published findings are available on our website under Our findings. They help others understand what we have identified and what we have asked organisations to do to put things right. Our investigations and recommendations can drive improvements across public services, not just within the organisation involved.
Before publishing decisions, we pseudonymise them and remove, as far as possible, any information that could identify the complainant or other individuals involved.
We usually name the organisation. A notable exception is cases involving small primary care service providers such as GP practices, dentists, or pharmacies, where naming the organisation could lead to identification of individuals.
We will not name anyone from your organisation unless there are compelling reasons to do so.
In rare circumstances, we may decide not to publish a summary or report if we believe publication could risk identifying someone.
Related reading
Asking for a review of our decison
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 - it has an impact on the original decision.
You must send us your review request within four weeks of the date of our decision letter. Further information about the review process is available under Decision review process.
Related reading
- Decision review process
- Stages in the complaint process
- Customer-facing information about how we handle complaints
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 will cause undue difficulty.
Sharing information with the SPSO
We appreciate that organisations will want reassurance that they can share information with the SPSO.
The SPSO has statutory functions that require us to obtain information, including personal data. These include:
- Considering complaints and giving reasons when we decide not to investigate.
At the Triage and Early Decision or Preliminary Investigation stages, we may ask you for further information to help us reach a decision. This may relate to your response to the complaint, the evidence that supports it, or any actions taken as a result. - Investigating complaints.
At the investigation stage (stage 4), we will request all necessary evidence that we have not already obtained. If required, we have the power to compel organisations to provide this information, with the same authority as the Court of Session to require the production of evidence. - Acting as a complaints standards authority.
Legislation requires organisations to cooperate with us in this role.
We explain on our paper form, online form and in our privacy notice that we will contact the organisation complained about to request information. People are encouraged to speak to us if they have any concerns about this.
In situations where the data we require is likely to include special category data, we may issue a notification to the person whose information it is (or to someone acting on their behalf). This notification explains that we will be seeking access to that data and gives them a clear opportunity to object. We may provide your organisation with a copy of this notification to reassure you that we are processing the data fairly. However, this is not a consent form, and we do not require consent to access this information.
When you provide us with information, please tell us if any of it requires sensitive or careful handling. We have statutory powers that allow us to disclose information for the purposes of an investigation. However, if you highlight any concerns about releasing particular information, we can take this into account when handling it.
If we receive a subject access request or any other information rights request relating to the information you have provided, we would normally contact you to ask whether there is anything you would not wish us to disclose—and why. The best time to raise any concerns is at the point you provide the information, as we can record and retain that concern alongside the data.
We recognise that some information we request may be particularly sensitive and may include details about third parties. We are always happy to discuss any concerns or questions you may have about the information we are requesting.