Scrutiny of Scottish Public Services Ombudsman

I comment on the first two listed powers of the Scottish Public Services Ombudsman (SPSO) pertaining to (a) the final stage of complaints of most devolved public services in Scotland and (b) monitoring and supporting best practice in complaints handling. I write as one having direct involvement which is continuing. I do not comment on the SPSO oversight of the Scottish Welfare Fund of which I have had no involvement. The basis of my interaction with the SPSO arose in conjunction with my post of serving primary school head teacher.

I took up post in June 2001 and six months later the school was subject to an inspection by Her Majesty's Inspectorate of Education (HMIE). This went well. This was before the existence of the SPSO which was founded in 2002. In 2004 the school established a new nursery. This involved close liaison with the local authority early years team and also with the Care Commission with regard to oversight of premises, procedures, policies, staffing and Council external management and quality oversight functions of the nursery. In 2005 the nursery was inspected by the Care Commission. This also went well. That year we also passed a Health Promoting Schools Review which was a new national initiative and incorporated into our school development planning procedures. That was all a positive experience. The school was dynamic, successful, happy and productive, developing in accordance with the established procedures of the School Improvement through Self-Evaluation (SISE) initiative, and, from 2006, the national Building the Curriculum (BCC) initiative which incorporated several distinct policy innovations including A Curriculum for Excellence, Assessment is for Learning, The National Grid for Learning, School Improvement through Self-Evaluation and the Education Business Partnership/Enterprise in education, amongst others. We were actively involved in these, including as action inquiry development projects which received bid-for grant funding and from which published case studies ensued. Our activities were displayed on the the school's website from 2002 in the form of pupil illustrated reports.

In 2006 the nursery was inspected by HMIE, which was also carried out on behalf of the Care Commission. I and nursery staff, including external managers, observed on irregularities of process and queried the draft findings, on the basis of our records and of practice on the day. HMIE staff in headquarters made substantial amendment to the report with regard to the substantive aspects of practice. However the second report continued to state that there were substantial failings in the management and administration of the nursery, which HMIE term 'leadership' but only with regard to my role as headteacher, not the nursery staff, who were complimented. As the sole member of staff with a management role, and school responsible officer in my role of head teacher, I disputed this, providing extensive contemporaneous evidence. It so happens that in 2006 the Council undertook a wholesale amendment of nursery procedures and policies, which we implemented meticulously. Thereby, at the time of the inspection we were particularly well prepared, trialling these new procedures and policies. Once HMIE signalled that they would publish the heavily amended report, but without also correcting what I contended were erroneous and unfair statements with regard to the school's 'leadership', i.e. administration and management, I complained, prior to publication. There were also remaining substantive practice errors, in my view, for which I placed substantive evidence.

This was when I first contacted the SPSO and when I first looked into the role of the SPSO. I did so because of a statement in the inspection report, not then yet published, referring to the HMIE complaints procedure and which stated: "If you are not satisfied with the action we have taken at the end of our complaints procedure, you can raise your complaint with the Scottish Public Services Ombudsman."

I contended that the school had reached the end of the complaints procedure, since HMIE informed me that they would publish prior to dealing with the outstanding substantive points of my complaint. I rang the SPSO inquiring as to how they operated. I hoped that quick resolution to this matter could be found, prior to report publication, which I perceived would be immensely damaging to staff, and would disorientate parents with regard to their confidence in the nursery, and beyond, to the school overall and me in particular as head teacher. HMIE did publish the report, prior to responding to the complaint. There was substantial adverse press coverage. I did subsequently receive a complaint response from HMIE, which did not address all complaint points and negated the grounds of my complaint, though, from what I see, counter to evidence. I challenged this. When this reached the end of the complaints procedure as an exchange of correspondence which constituted the non-resolution point I took the complaint to the SPSO in August 2008 in accordance with the published complaints procedure. The SPSO rejected the complaint as being out of jurisdiction on the grounds that I was not a member of the public being an employee. I challenged this on the grounds that it invalidated the complaints procedure and rendered it inaccessible. Upon receiving notice of rejection of my complaint HMIE subjected the school to a new whole school inspection, including the nursery.

This was a very negative experience. There were large amendments to procedures for school self-evaluation and reporting, and a new inspection methodology placed on schools in summer 2008 such that it was not possible to carry out the normal cycle of development planning. For the first time since commencing in 2001 the school year 2008-09 commenced without a School Development Plan in place, because new procedures were coming in which had not been finalised in time of both the Council and HMIE. This included issuing a new Standards and Quality report, in addition, for the first time in addition to a School Development Plan. HMIE instituted a new Scottish New Inspection Model in August 2008, substantially altered from hitherto existing procedures, for immediate implementation. However, the school ensured that all the new procedures were in place by the time of the inspection in November 2008. There were also major changes to practice, as I have listed above, deriving from expressly transformational changes of national policy, but which HMIE stated then to be not evaluating. This led me to become very involved with matters pertaining to evaluation, curriculum and assessment change, pedagogic practice, and policies and procedures pertaining to complaints, and more generally to dissatisfaction/satisfaction with public service functions, and probity of function with regard to external audit, management and governance. I also became particularly focused on boundaries of roles, between school management and the local council, the role of parents as a key constituency of interest but who were not in essence the clients, who were the pupils, but also the state (Scotland given that education is fully devolved) in terms of principles of education for public value. I also then queried mechanisms of legitimacy when there were competing models of practice, major differences of context and institutional forms of school education in Scotland, and a society going through immense normative changes through a technological communications' revolution, with major impacts on education. Our school was particularly innovative and involved in a range of development projects with a large number of external partners including national and Council agencies. I contend that all policies and procedures were in place, and that practice was meritorious, including providing for pupils with major additional support needs, appropriately. From the adverse press coverage in March 2007 there was disquiet amongst some parents which then became manifest as a hostile campaign ran by some, including through the press and directed at me personally. They also involved councillors and the local MSP who each responded. I found dealings with managers on this issue to be very difficult. There is a contended issue as to whether those communications constituted complaints or not.

This set the scene for a very difficult phase in the school with regard to relationships amongst adults, but not children, who were unaffected. I became aware of the Crerar Review of scrutiny and complaints handling in 2007, attended their seminar and submitted a response. In 2008 I submitted a response to the Accountability and Governance Action group of the Crerar Review implementation committees. Once the SPSO rejected my and the school's complaint referral there was substantial correspondence between me and the SPSO. In November 2008 the school went through a profoundly hostile inspection with an intense and public campaign being run against me, by certain parents, not of pupils I was teaching, and a press title. Matters with regard to this inspection caused me to place a major response to the draft report, and again, once matters were not duly addressed, I placed a complaint for which I supplied substantial evidence. This included the substantiation of innovative and commendable practice, including during the inspection itself as inspected lessons, and of two lessons taken by me. One point of my complaint was upheld prior to publication. The others were not addressed. A point which was of particular significance for me, was that the new report stated that I had recourse to the SPSO in the event of a complaint of HMIE, but the SPSO were telling me, contemporaneously, that I did not. I challenged this. I have found out subsequently through Freedom of Information requests that HMIE challenged this too then. This was a matter of concern to them too. The then ombudsman, Alice Brown, responded to me on this matter, both prior to publication of the new report on 10 February 2009, and subsequently. She asked to meet with me, which occurred on 9 March 2009, also attended by Eric Drake, Director of Investigations, SPSO. We discussed some of the detail pertaining to my dispute with her office pertaining to jurisdiction and my status or otherwise as a valid complainant in my role of head teacher. Since the HMIE inspectorate are independent of my employer I saw that this was not a personnel issue nor an issue back then which could be taken to an employment tribunal. I did not then have an issue with my employer whom I saw were backing me on this issue. My issue was with the inspectorate of HMIE.

Alice Brown, SPSO, also raised with me the overlap and also distinction between a complaint and an appeal, and that my objections to now two HMIE reports were of the nature of appeals as well as complaints. She stated that she would seek legal advice. Eric Drake wrote to me subsequently stating that this was received by the SPSO and that it concurred with the position which I had placed, and not that of the SPSO. There was a subsequent change of ombudsman. On 7 December 2009, the new ombudsman, Jim Martin, wrote to me stating that he was closing my case stating "I am exercising my discretion under Section 2 of the Act to take no further action on your complaint." He also wrote in the letter: "I am sorry that it has taken so long for us to reach a final position on your complaint. However, as I hope you will appreciate, your case raised several complex jurisdictional issues which I needed to consider very carefully and having regard to the legal advice I received."

But the action which he took was to counter the legal advice sought and received by the SPSO as initiated by his predecessor. Matters then became very difficult for me, given actions taken against me, which I will not go into here. On 5 October 2011, Mr Martin was interviewed on Good Morning Scotland regarding the SPSO's annual report. He stated, "Now I think that the bodies have a responsibility to make sure as far as possible to get things right first time. And I want them to go for the Gold Standard in handling of complaints, and I want to help them to get there". This was reported in The Scotsman on 5 October 2011: 'Public sector in dock as even complaints attract complaints'. The article stated, 'But Mr Martin said that one of the largest sources of complaints was "ironically about complaint handling itself." He said: "I'm conscious that it's generally very difficult for ordinary citizens to navigate the complaints procedures. We've heard of cases where people complained to a council over a year ago, but have still not had their issues addressed."'

This caused me to contact the SPSO office. I also placed a Freedom of Information request concerning my case to both Education Scotland, within whom HMIE were then located, and the SPSO. The SPSO replied on 15 November 2011, supplying data and Education Scotland replied on 14 November 2011, supplying data. However their reply was not FOI legislation compliant, and, following appeals, and then referrals to the Scottish Information Commissioner there were subsequent releases of recorded information under this FOI to me on 19 November 2014 and 8 April 2015. A particularly important item of information released with regard to this consultation and the role of the SPSO is that Eric Drake's successor as director of investigations SPSO, Steve Carney, issued a "a full and final response in this
matter" dated 29 October 2009 to the correspondence chain between SPSO and HMIE initiated on 11 February 2009 "Who can complain to the Ombudsman" to HMIE. The response counters the legal advice which the SPSO received, which the FOI informed me was supplied by Anderson-Strathern. It has never been countered by subsequent legal advice sought or received by the SPSO, Education Scotland or the Scottish Government as known to me. I have raised this matter with the General Teaching Council for Scotland (GTCS) who have informed me that they do not have jurisdiction in this matter. I only found out about this jurisdictional ruling of the SPSO through Freedom of Information release of Education Scotland.

Somewhat ironically I complained of HMIE, on the last day of their existence as a separate body on 30 June 2011, that they do not operate complaints and appeals processes of their substantive function of inspection. Whilst initially denied, the response to my FOI response of 14 November 2011 confirmed this. That is of major significance given that they are a 'body under jurisdiction' of the SPSO and themselves subject to the model complaints handling principles of the SPSO initiated in 2011.

I contacted the SPSO office by telephone and email. Emma Gray, Head of Policy and External Communications, SPSO, wrote to me on 28 October 2011 stating, "I appreciate that the subject of your concern is your experience of complaints handling by HMIE. As you know, that body has now been superseded by Education Scotland, which like HMIE is a body under our jurisdiction. That puts Education Scotland squarely under the SPSO’s requirements for bodies under jurisdiction to comply with the SPSO’s Statement of Complaints Handling Principles (attached). These were approved by the Scottish Parliament in January 2011 and like all bodies, Education Scotland will have to demonstrate that its complaints process complies with the Principles."

By a remarkable juxtaposition of communications, on that same day, 28 October 2011, Alistair Brown, HM Inspector, Education Scotland, having senior responsibility for Highland Council schools, wrote to Hugh Fraser, Director of Education Culture and Sport, Highland Council stating, "We will carry out no further inspection visits as a result our inspection of November 2008." Thereby the school was 'signed off' from HMIE. This is of immense importance because it means that there will be no further 'follow through' inspections either by HMIE/Education Scotland or on their behalf by the 'Quality Assurance' procedures of the Council. But neither Mr Brown nor Mr Fraser informed me as head teacher, and neither did any other officials of Education Scotland or Highland Council. I was only informed when I submitted a Freedom of Information request on 4 November 2013 as head teacher, which was replied to on 6 December 2013 and supplying this letter. The Council did then carry out a further follow-through inspection to this same agenda, but unannounced on a day when I happened to be off work sick which was only for a very short time in March 2012.

I have become aware that the SPSO legislation does not permit dealing with complaints of schools and teachers. These are dealt with by local councils who also may initiate disciplinary proceedings of teachers as the employer. Higher tariff complaints or evidenced claims to misconduct or lack of competence of teachers are dealt with under the GTCS 'Fitness to Teach' proceedings regarding which hearings are held. But my complaints of HMIE as head teacher in my role as head of the responsible body reported on, and of whom personalized findings were made, is not competent within the proceedings of any of these bodies.

Prior to the establishment of the Scottish Parliament HMIE were part of the Audit Unit of the Education and Industry Department of The Scottish Office. Under the devolved Scottish Executive this became the Scottish Executive Education Department (SEED). Inspectors were civil servants. From 1996 school self-evaluation was instituted guided by a document called How Good Is Our School. This has undergone four versions. This sets out graded exemplars of practice termed evaluations which are grades of schools as institutions. These criteria are mandated by HMIE as also is the methodology. A tension has arisen in that the standards for teaching and for headship are administered by an entirely separate and, since 2011, independent body, the General Teaching Council for Scotland (GTCS). But these are standards of teachers as individuals not institutions. Yet another tension has arisen in that a complex set of initiatives 2001-16, described as expressly transformational and innovative, centred around Assessment is for Learning and A Curriculum for Excellence and to be expressly built by schools 2006-2013 under the Building the Curriculum initiative of five guided stages were administered by yet another body, the national curriculum agency Learning and Teaching Scotland (LTS), and from 2011, Education Scotland. In 2005 HMIE was established as a separate Executive Agency of the Scottish Executive. It was a 'body under jurisdiction' of the Scottish Public Services Ombudsman. In 2011 LTS was merged with HMIE. This provides a complex landscape of accountability if bodies overly prescribe and mandate practice criteria, whether for teachers as individuals or schools as institutions. For a job role such as mine as a class committed rural primary school head teacher, undergoing expressly transformational pedagogic change, this sets up profound tensions and onto contradictions as to the parameters of the permitted or the expected.

I was commissioned by a senior international academic to write an academic article of these issues. It was published in 2011. It has been widely reviewed and referred to internationally. It is:

MacKinnon, N., (2011). The urgent need for new approaches in school evaluation to enable Scotland’s Curriculum for Excellence, Educational Assessment, Evaluation and Accountability, Volume 23, Number 1. February
http://link.springer.com/article/10.1007/s11092-011-9116-4
http://link.springer.com/journal/11092/23/1/page/1

I wrote another then as an article expressing key issues which required, and still require, to be resolved nationally:

MacKinnon, N., (2011). ‘Let’s re-energise 'living learning', Times Educational Supplement for Scotland. 18 February. https://www.tes.com/news/lets-re-energise-living-learning

Earlier, in 2008, I had set out the profound national contradiction in two articles:

MacKinnon, N. (2008). The Perils of Permanent Perfection, Times Educational Supplement for Scotland, 21 March. https://www.tes.com/magazine/archive/perils-permanent-perfection
https://bit.ly/3GvrE0t

MacKinnon, N., (2008). ‘There is no such thing as the right way’, Times Educational Supplement for Scotland, 4 July 2008. https://www.tes.com/news/there-no-such-thing-right-way
https://bit.ly/403hQrK

2008 was a pivotal year given the Crerar Review feeding in to the Public Services Refrom Act (2010). 2011 was a pivotal moment given the establishment of Education Scotland and also the establishment of the GTCS as a wholly independent body, independent of the Scottish Government, Scottish Parliament and from then, not a 'body under jurisdiction' of the SPSO. It is solely responsible to the teaching profession who are its members. Thereby the GTCS widely proclaims that the teaching profession in Scotland is self-governing but this is highly problematic given the role and power of HMIE, from 2011 within Education Scotland, and its lack of any accountability, other than to the SPSO. But the SPSO withdrew that oversight role in October 2009, informing only HMIE, and countering the legal advice received from Anderson-Strathern solicitors. Which brings me directly to the heart of this consultation. If you open mygov.scot online for the education agency Education Scotland today (11 October 2024) at https://www.mygov.scot/organisations/education-scotland there is a heading "Education Scotland" a single descriptive sentence "Responsible for supporting quality and improvement in learning and teaching" and then just two headings with just once sentence each:

"Choosing a school for your child
Find out how to choose a school for your child"

and

"School inspection reports
Find out how a school is performing".

The latter is profoundly simplistic and yet also contentious. Do schools 'perform'? And if so how, and how determined, and validated? What if the development and progression of children is considered by their educators through other conceptual and normative criteria?

Given further FOI releases of Education Scotland under the same FOI which I placed on 15 October 2011 occurring up to 8 April 2015, and other information under other FOI and Data Subject Access releases I placed a new complaint of Education Scotland on 2 October 2015, as head teacher, of the inspection of 28 report of 28 March 2007, and relating to that of 10 February 2009, but utilising wholly new (to me) data. Lesley Brown, Strategic Director, Education Scotland, wrote to me on 2 November 2015 refusing to provide substantive reply and stating "Education Scotland has addressed your concerns as fully as I believe is possible and appropriate and this matter cannot be taken any further within our complaints handling procedure.

If, after receiving our response to your complaint, you remain unhappy, you can ask the Scottish Public Services Ombudsman (SPSO) to consider your complaint."

When I referred this to the SPSO they merely issued a 'noted' card and without issuing a case reference number.

This took and takes the matter full circle. After further correspondence Education Scotland claimed to have investigated. When I asked to be sent the report they stated that they had not produced one and which was confirmed by a decision report of the Scottish Information Commissioner. They then asked to meet with me, which occurred on 29 August 2018, the first time that they met me with regard to my complaints. I was accompanied by a head teacher who has undergone similar treatment and complaint blocking. I sent a minute which they acknowledged and refused to respond to. They then wrote, anonymously, on 19 March 2019 stating "Following full consideration of your letters Education Scotland regards the complaint of 2 October 2015, the review of the complaint in 2017 and all other related correspondence to the HMIE inspections of Plockton Primary School to have been fully investigated, completed and closed. Education Scotland would reiterate the previous responses you have received throughout 2016/17 and will no longer communicate on these matters. that this matter was fully investigated and closed." There is a public decision report of the Scottish Information Commissioner stating that this is not the case. There are no published decision reports of the SPSO nor publicly accessible case closure letters. The SPSO has not flagged up the complaint jurisdictional anomaly. Nor has the GTCS. There is no other body having jurisdiction. There is no equivalent body to the Police Investigations and Review Commissioner.

I have raised this matter with the current ombudsman, Rosemary Agnew, in writing. She has written back to me stating that she will take no further action.

I considered raising 'Fitness to teach' claims to the GTCS with regard to specific individuals. I wrote to a third sector organization involved in accountability who wrote to my union on my behalf. They stated that they would not support such action. Without any backing I could not see any way forward.

There are profound contradictions as between client confidentiality and public accountability. The whole area of complaints against person-centred service provider professionals, what constitutes a complaint, whether or not this is considered to be a potential deficiency of service provisioning, and onto professional standards issues is a quagmire. The covert nature of inspection processes and SPSO processes compounds this immeasurably. There is profound confusion of remits and procedures. There is no separation of stages as would occur in criminal proceedings as between charge, decision to prosecute and trial. There is no process of proof. Inspection and Council 'quality assurance is wholly confused as to whether their role is research or judgment and the nature of due process for each, including contestation and appeals.

I wrote a more recent article on this from a very different methodological and ethical perspective:

MacKinnon, N., (2020). A new way forward in systems learning for Scottish schools. Vanguard Consulting Ltd.
https://beyondcommandandcontrol.com/library/articles/non-academic-articles/a-new-way-forward-in-systems-learning-for-scottish-schools/

and internationally:

Laferrière, T., Nunes, C., MacKinnon, N., Massey, L., Teo, C.L., Reeve, R., Vinha, T., Gagnon, V. (2023). Connecting between systems for classroom-based Knowledge Building sustainability and scalability. Qwerty Vol. 18, No.1.
Paper: https://www.ckbg.org/qwerty/index.php/qwerty/article/view/474/381
Whole issue of journal: https://www.ckbg.org/qwerty/index.php/qwerty/issue/view/49
Annex: https://ikit.org/kbi/wp-content/uploads/2023/04/Annex-Qwery_2023.pdf

Such practice is rendered inoperable in an accountability and complaints handling landscape as is currently pertaining in Scottish public services.

A complete rethink is needed on systems learning principles.

MacKinnon, N., (2011). Systems learning, not inspection, Holyrood Magazine, 11 March https://drive.google.com/file/d/1VtjjrVO2MnuhqsiMinajULOchF3NjOSf/view?usp=share_link

See question 1.

See my submission to the SPSO Strategic Plan 2024-2028 which I shall supply separately. It repeats and adds to that of my submission in 2012 whose issues were not addressed at all. I shall supply these by email.

See: Philip M. Langbroek & Peter Rijpkema*Demands of proper administrative conduct A research project into the ombudsprudence of the
Dutch National Ombudsman http://www.utrechtlawreview.org/ Volume 2, Issue 2 (December) 2006

We should not be encouraging complaints. We should be encouraging understanding and problem solving.

It is profoundly confused. In my job role of head teacher there is a tangled mess of unaccountabilities. We are left unprotected and undefended.

I wrote in my response to the 2012 consultation thta the SPSO should be replaced with a Public services Authority.

It is profoundly insufficient. Parliamentary oversight and scrutiny is not able to 'get at' what is really going on. There are chinks, occasionally. See:

Accountability Scotland (2013). Conference: ‘Making Scottish Public Services Accountable’, presentation: School inspection complaints and the Scottish Public Services Ombudsman’ (p4) http://www.accountabilityscotland.org/index.php/conference
http://www.accountabilityscotland.org/images/press_release/Accountability_Scotland_Conference_Proceedings.pdf