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Scottish Public Services Ombudsman Act 2002

Type Act of the Scottish Parliament

Publication 2002-04-23

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

The Scottish Public Services Ombudsman

Local Government Act 1988 (c.9)

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(1) For the purposes of this Act there is to be an officer known as the Scottish Public Services Ombudsman (in this Act referred to as the “Ombudsman”) who is to be an individual appointed by Her Majesty on the nomination of the Scottish Parliament.

(2) Her Majesty may, on the nomination of the Parliament, appoint individuals to be deputy Scottish Public Services Ombudsmen; and in this Act references to a deputy Ombudsman are to any such deputy.

(3) There are to be no more than three deputy Ombudsmen at any time.

(4) The Ombudsman’s functions may be exercised by a deputy Ombudsman if—

(a) the office of Ombudsman is vacant (unless there is an acting Ombudsman appointed under paragraph 5(1) of schedule 1), or

(b) the Ombudsman is for any reason unable to act,

and while exercising those functions the deputy Ombudsman is to be treated for all purposes, except those of paragraphs 3(a), 4, 7 and 8 of schedule 1, as the Ombudsman.

(5) Schedule 1 makes further provision about the appointment, status, etc. of the Ombudsman and deputy Ombudsmen and about other administrative matters in connection with those officers.

Investigations by the Ombudsman

Power of investigation

2

(1) The Ombudsman may investigate any matter, whenever arising, if—

(a) the matter consists of action taken by or on behalf of a person liable to investigation under this Act,

(b) the matter is one which the Ombudsman is entitled to investigate, and

(2) The Ombudsman may investigate any matter, whenever arising, if—

(a) paragraphs (a) and (b) of subsection (1) are satisfied, and

(b) the person liable to investigation has requested the Ombudsman to investigate the matter.

(3) Without prejudice to paragraph 2(2) of schedule 1, it is for the Ombudsman to decide whether to initiate, continue or discontinue an investigation under subsection (1) or (2).

(4) The Ombudsman may take such action in connection with the complaint or request as the Ombudsman thinks may be of assistance in reaching any such decision.

(5) Such action may, in particular, include action with a view to resolving the complaint or request.

Persons liable to investigation

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(1) The persons liable to investigation under this Act are the persons specified, or of a class specified, in Parts 1 , 2 and 3 of schedule 2; and references in this Act to a listed authority are references to any such person.

(2) Her Majesty may by Order in Council amend Part 2 of that schedule so as to—

(a) modify any entry in it,

(b) remove any entry from it, or

(3) An entry may be added to that Part of that schedule only if the entry relates to a person who, or a class of persons each of whom, is—

(a) a Scottish public authority with mixed functions or no reserved functions,

(b) a publicly-owned company, or

(c) a person who is neither a Scottish public authority nor a publicly-owned company but who appears to Her Majesty to exercise functions of a public nature.

(4) An Order in Council under subsection (2) adding an entry to that Part of that schedule in pursuance of subsection (3)(c)—

(a) may provide for this Act to apply to any person to whom, or falling within any class of persons to which, the entry relates subject to such modifications or exceptions as may be specified in the Order in Council, and

(b) must, in relation to each such person or class of person, specify the functions of a public nature which appear to be exercised by that person or, as the case may be, persons of that class.

(5) No recommendation to make an Order in Council referred to in subsection (4) is to be made to Her Majesty in Council unless every person to whom the Order relates has been consulted.

(6) No entry is to be added to Part 2 of schedule 2 in relation to—

(a) a person whose sole activity is, or whose main activities are—

(i) the provision of education, or the provision of training otherwise than under the Industrial Training Act 1982 (c.10),

(ii) the development of curricula, the conduct of examinations or the validation of educational courses,

(iii) the control of entry to any profession or the regulation of the conduct of members of any profession, or

(iv) the investigation of complaints by members of the public regarding the actions of any person or the supervision or review of such investigations or of steps taken following them, or

(b) a person operating in an exclusively or predominantly commercial manner or a person carrying on under national ownership an industry or undertaking or part of an industry or undertaking.

(7) Her Majesty may by Order in Council amend Part 3 of schedule 2 so as to—

(a) modify any entry in it,

(b) remove any entry from it, ...

(c) add to it any entry relating to a person, or class of persons, providing fundable further education or fundable higher education (within the meaning of the Further and Higher Education (Scotland) Act 2005 (asp 6)) , or

(d) add to it an entry relating to a regional strategic body (within the meaning of that Act).

(8) An Order in Council under subsection (7) adding an entry to that Part of that schedule relating to a person, or class of persons, whose business (whether commercial, charitable or otherwise) includes matters other than the activities which post-16 education bodies (within the meaning of that Act) generally carry on—

(a) must, as regards that person or class, provide for this Act to apply only in relation to those activities; and

(b) may do so subject to such modifications or exceptions as may be specified in the Order in Council.

(9) No recommendation to make an Order in Council under subsection (7)(c) is to be made to Her Majesty unless every person to whom the Order relates has been consulted.

Persons liable to investigation: supplementary

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(1) A person is a publicly-owned company for the purposes of section 3(3) if that person is a company wholly owned by the Scottish Ministers or by any listed authority.

(2) A company is wholly owned—

(a) by the Scottish Ministers if it has no members except—

(i) the Scottish Ministers or companies wholly owned by the Scottish Ministers, or

(ii) persons acting on behalf of the Scottish Ministers or of such companies,

(b) by a listed authority if it has no members except—

(i) the authority or companies wholly owned by the authority, or

(ii) persons acting on behalf of the authority or of such companies.

(3) In subsections (1) and (2), “company” includes any body corporate.

Matters which may be investigated

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(1) The matters which the Ombudsman is entitled to investigate are—

(a) in relation to a listed authority other than one to whom paragraph (b), (d) or (e) applies, any action taken by or on behalf of the authority (other than action consisting of a service failure) in the exercise of administrative functions of the authority,

(b) in relation to a health service body or an independent provider, any action taken by or on behalf of the body or provider (other than action consisting of a service failure),

(d) in relation to a family health service provider, any action taken by or on behalf of the provider in connection with any family health services provided by that provider,

(e) in relation to a registered social landlord, any action taken by or on behalf of the landlord.

(2) In subsection (1), “service failure”, in relation to a listed authority, means—

(a) any failure in a service provided by the authority,

(b) any failure of the authority to provide a service which it was a function of the authority to provide.

(3) The Ombudsman may investigate a matter falling within subsection (1) pursuant to a complaint only if a member of the public claims to have sustained injustice or hardship in consequence of—

(a) where the matter is such action as is mentioned in paragraph (a), (b) or (e) of that subsection, maladministration in connection with the action in question,

(b) where the matter is such failure or other action as is mentioned in paragraph (c) or (d), the failure or other action in question.

(4) A person making such a claim is referred to in this Act as the “person aggrieved”.

(5) The Ombudsman may investigate a matter falling within subsection (1) pursuant to a request only if the Ombudsman is satisfied that—

(a) it has been alleged publicly (whether or not by a person aggrieved) that one or more members of the public have sustained injustice or hardship as mentioned in subsection (3), and

(b) the listed authority in question has taken all reasonable steps to deal with the matter to which the allegation relates.

(6) In this section “member of the public” means any individual or body of persons (whether incorporated or not) other than—

(a) the Parliamentary corporation,

(b) a local authority or other authority or body constituted for purposes of the public service or of local government,

(c) an authority or body constituted for the purposes of carrying on under national ownership an industry or undertaking or part of an industry or undertaking,

(d) any other authority or body—

(i) whose members are appointed by Her Majesty or by any Minister of the Crown or government department or by a member of the Scottish Executive, or

(ii) whose revenues consist wholly or mainly of money provided by the Parliament of the United Kingdom or sums payable out of the Scottish Consolidated Fund (whether directly or indirectly).

(7) This section is subject to sections 6 to 8.

Application of section 5 to certain tribunals

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(1) For the purposes of section 5, administrative functions exercisable by any person appointed as a member of the administrative staff of any tribunal specified in schedule 3—

(a) by a listed authority (whether alone or jointly with any other person), or

(b) with the consent (whether as to remuneration and other terms and conditions of service or otherwise) of a listed authority,

are to be taken to be administrative functions of that authority.

(2) Her Majesty may by Order in Council amend schedule 3 so as to—

(a) modify any entry in it,

(b) remove any entry from it, or

Matters which may be investigated: restrictions

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(1) The Ombudsman is not entitled to question the merits of a decision taken without maladministration by or on behalf of a listed authority in the exercise of a discretion vested in that authority.

(2) Subsection (1)—

(a) does not apply in the case of an investigation into a matter mentioned in section 6A(1), and

(b) in the case of any other investigation in relation to a health service body, a family health service provider or an independent provider, does not preclude the Ombudsman from questioning the merits of any decision taken by or on behalf of the body or provider to the extent that it was taken in consequence of the exercise of clinical judgement.

(2A) Subsection (1) does not apply to the merits of a decision taken by or on behalf of a listed authority to the extent that the decision was taken in exercise of a function conferred by or under Part 4 or 5 of the 2014 Act.

(2B) The Ombudsman is not entitled to investigate action taken in the exercise of a function conferred by or under Part 4 or 5 of the 2014 Act if the exercise of the function was not a matter which could have been the subject of a complaint under an order under section 30 or 43 of that Act in force at the time of the action.

(2C) Subsection (1) does not apply to the merits of a decision taken by or on behalf of a person mentioned in subsection (2D) in pursuance of a social work function to the extent that the decision was taken in consequence of the exercise of the professional judgment of the social worker or other person discharging the function.

(2D) The persons are—

(a) a local authority, or

(b) the holder of an office established by or under any enactment to which appointments are made by a local authority.

(2E) In subsection (2C), “social work function” means a function conferred by or under—

(a) the Social Work (Scotland) Act 1968,

(b) an enactment mentioned in section 5(1B) of that Act, or

(3) The Ombudsman must not investigate action taken by or on behalf of a member of the Scottish Executive unless the action was taken in the exercise of functions conferred on the Scottish Ministers or of functions conferred on the First Minister alone.

(4) For the purposes of subsection (3), functions conferred on the Scottish Ministers include functions exercised by them on behalf of a Minister of the Crown or government department by virtue of section 93 (agency arrangements) of the Scotland Act 1998 (c.46).

(5) The Ombudsman must not investigate action taken—

(a) by or on behalf of a listed authority which is a cross-border public authority, or

(b) by a member of the administrative staff of any tribunal specified in schedule 3 which is a cross-border public authority,

unless the action taken concerned Scotland and did not relate to reserved matters.

(6) The Ombudsman must not investigate action taken by or on behalf of an independent provider unless the action—

(a) was taken in relation to, or

(b) consisted of a failure in, or to provide,

a service which the independent provider was providing, or which it was the independent provider’s function to provide, under arrangements with a health service body or a family health service provider.

(6A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6B) The Ombudsman must not investigate action taken by or on behalf of the Statistics Board in the exercise of any of its functions unless the function is being exercised only in relation to Scottish devolved statistics (within the meaning of section 66 of the Statistics and Registration Service Act 2007).

(6C) The Ombudsman must not investigate action taken by or on behalf of the Committee on Climate Change in the exercise in or as regards Scotland of any function to the extent that the function is not exercisable within devolved competence (within the meaning of section 54 of the Scotland Act 1998).

(6D) The Ombudsman must not investigate action taken by or on behalf of the Electoral Commission unless the action taken concerned local government elections in Scotland or the exercise of the Commission’s functions under the Referendums (Scotland) Act 2020.

(7) The Ombudsman must not investigate action taken by or on behalf of a person who is a listed authority by virtue of an Order in Council referred to in subsection (4) of section 3 unless the action was taken in the exercise of the functions of a public nature which are specified in the Order in Council in pursuance of paragraph (b) of that subsection.

(8) The Ombudsman must not investigate any matter in respect of which the person aggrieved has or had—

(a) a right of appeal to a Minister of the Crown or the Scottish Ministers,

(b) a right of appeal, reference or review to or before any tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative, or

unless the Ombudsman is satisfied that, in the particular circumstances, it is not reasonable to expect the person aggrieved to resort or have resorted to the right or remedy.

(9) Subsection (10) applies where a matter in respect of which a complaint is made under this Act—

(a) is a matter in respect of which a complaint can be made, or a review can be requested, by the person aggrieved under a procedure operated by any listed authority (whether or not the listed authority in relation to whom the complaint under this Act is made), and

(b) is not a matter of the kind mentioned in subsection (8) or paragraph 12 of schedule 4.

(10) In such a case, the Ombudsman must not investigate the matter unless the Ombudsman is satisfied that—

(a) the other procedure has been invoked and exhausted, or

(b) in the particular circumstances it is not reasonable to expect the procedure to be invoked or, as the case may be, exhausted.

Excluded matters

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(1) The Ombudsman must not investigate any matter specified in schedule 4.

(2) Her Majesty may by Order in Council amend schedule 4 so as to—

(a) modify any entry in it,

(b) remove any entry from it,

(3) Nothing in section 7 or schedule 4 prevents the Ombudsman conducting an investigation in respect of action taken by a listed authority in operating a procedure established to examine complaints or review decisions.

Complaints: who may complain

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(1) A complaint may be made to the Ombudsman—

(a) by the person aggrieved, or

(b) by a person authorised in writing for the purpose by the person aggrieved.

(2) The persons who may be authorised for the purpose of subsection (1)(b) include, in particular—

(a) a member of the Scottish Parliament,

(b) a listed authority,

(3) Despite subsection (1)—

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