Ensuring children’s rights and needs are met by public service complaints procedures in Scotland

January 2024 -  Consultation on Draft Child Friendly Complaints Handling Principles

Our consultation on the draft Child Friendly Complaints Handling Principles (PDF, 125KB) is now open, and we are accepting responses until 1 March 2024. The purpose of this consultation is to gather responses on the current drafts, to ensure they are clearly communicated and easy to understand. This consultation is also a legal requirement, as we will be looking to amend our Statement of Principles to include the Child Friendly Complaints Handling Principles in the next few months, following parliamentary approval. 

The consultation is open to all, but we are particularly looking for responses from:

• Anyone under 18
• Anyone with caring responsibilities for someone under 18
• Public services and third sector organisations who work with people under 18 or have an interest in promoting their rights 

The consultation questionnaire only takes about 10 minutes to complete. It can be found here: Consultation on Child Friendly Complaints Handling Principles

June 2023 - Pilot of Draft Child Friendly Complaints Guidance

Following an extensive co-design project with a wide range of children, young people, and other stakeholders, we have now launched a pilot of a draft version of the new approach to handling complaints involving children. This consists of two key guidance documents - the Child Friendly Complaints Handling Principles, and a Child Friendly Complaints Handling Procedure.

The purpose of the pilot is to test the new approach in a real world setting, to ensure it achieves the goal of meeting children's rights and needs, and to identify any changes required or improvements that may be beneficial. The pilot is open to any public body under our jurisdiction, to trial and test the new process at a scope and scale that they feel is appropriate and manageable, with the SPSO available to support that implementation and answer any questions that may arise during the handling of a complaint.

If your organisation would like to learn more about the draft guidance, or would like to take part in the pilot, please contact us at ISE-CSA@spso.gov.scot and we will be happy to help.

December 2022

The SPSO is currently working on a new approach to handling complaints that involve children. We are doing this by working with children & young people from a range of backgrounds, and from across Scotland, to co-design this new approach and ensure it is a system fit for purpose. We have also enlisted the help of a wide range of parents, advocates, and professionals that work with children in the public sector, to test and refine the approach and ensure it will work in a practical setting. We would like to extend our sincere gratitude and thanks to everyone who has helped us in this work so far.

We now have a first draft of a guide that will ultimately be implemented by all public bodies under our remit. This guide will set out how existing complaints processes can be adapted when a child or young person is involved. It will aim to ensure that their rights under the UNCRC are met throughout the complaints process and that their concerns are handled in a way that they have told us meets their needs.

We had initially planned to carry out a public consultation around now, aiming towards publishing the guide under our model complaints powers and requiring all relevant public bodies to have their own version in place by 1 April 2023. Following feedback from our engagement and testing work, we have decided to carry out a more targeted pilot first.

The pilot will focus on key services provided to children and young people, such as schools, social work services, and children’s health services. The aim of this work will be to test the new approach in practical settings, both to ensure it results in the right outcomes for children, and that it is efficient, practical and workable for the public sector bodies managing the process.

We will still hold a full public consultation before publication of the final guidance, but this will now take place after the pilots are complete and any changes made. We are still in the process of refining the pilot, and will provide further updates on the timeline and launch when we have definite dates. We will also be aiming to share further details of the approach before the 1 April 2023, so that all relevant bodies, including those not involved in the pilot, will have a better understanding of what to expect.

If your organisation would like to be involved, or you would like further information about what your involvement might entail, please contact us at CSA@spso.gov.scot and we will do our best to help.

July 2022

The SPSO is being funded by the Scottish Government to develop a child-friendly way for public bodies to handle complaints. On 25 April 2022 we launched our two-year project to develop and implement new guidance for the public bodies we work with.

Children and young people are users of a wide range of Scottish public services, including schools, children and families social work, and health visitor services. Many of these focus on wellbeing, health and development. Children have the right to complain if they are unhappy with those services.

We are developing guidance that will cover complaints about public services:

• made by children and young people themselves
• made on behalf of children and young people with their permission (e.g. by their parents, carers or third-party advocates), and
• concerning children and young people (e.g. made by their parents, carers or third-party advocates without permission or input from children and young people).

Project aim

Co-design and implement a public sector complaints service that meets children’s rights and needs, working in co-operation with children and young people, public bodies and wider stakeholders

It is important that complaints handling processes both enable children and young people to exercise their rights, and ensure those handling complaints hear and respect children and young peoples’ views and voices. Taking a co-design approach that hears those voices from the outset will help ensure young people have a real impact in shaping the new guidance.

Timescales

We will be running design workshops with a wide range of people over the next few months.  If you would like to take part in our workshops, or if you have any questions about the project, please contact us by emailing CSA@spso.gov.scot.  

Downloads

• Child Friendly Complaints update June 2023 (PDF, 150KB ) 
• Child Friendly Complaints update December 2022 (PDF, 91KB)
  • Child Friendly Complaints announcement July 2022 (PDF, 215KB)

On 26 January, the Ombudsman’s Office, represented by the Deputy Ombudsman, Estrela Chaby, signed a collaboration protocol with the National Centre for Legal Innovation (CNIJ), located in Bragança.

The CNIJ embodies a long-standing collaboration between the Faculty of Law of the University of Lisbon and Bragança City Council, under the slogan of a “University without walls”, with summer courses, conferences and other initiatives being held in the city.

In addition to the Ombudsman’s Office, the Supreme Administrative Court, the Attorney General’s Office, the Order of Notaries, the Order of Solicitors and Enforcement Agents, the Superior Council of the Judiciary and the Library and Academic Association of the Faculty of Law of the University of Lisbon also signed protocols with the CNIJ.

The Commissioner for Human Rights Marcin Wiącek presented a report on the activities of the Office of the Commissioner for Human Rights (OCHR) and the state of human and civil rights protection in Poland in 2022 at a meeting of the Sejm Committee on Justice and Human Rights on 25 January 2024. In his speech, he discussed the main issues related to human rights compliance, highlighting the Office's intervention activities and numerous complaints and petitions submitted to various institutions, including the Constitutional Tribunal and administrative courts.
Marcin Wiącek mentioned the statistical numbers relating to received complaints and advice provided by the OCHR, as well as detailed interventions on various legal issues such as care benefits, Swiss franc loans, or refugee rights. Of particular importance was the Office's involvement in issues related to the influx of refugees from Ukraine, changes in tax law under the Polish Deal, and amendments to the Executive Criminal Code.
During the discussion with parliamentarians, Wiącek answered questions on issues such as the situation in prisons, asylum policy, and the status of judges. He emphasised the need for legal reform, particularly in the light of rulings by the European Court of Human Rights and the Court of Justice of the European Union.
The final topic of discussion was the effective functioning of the Office and its structure. In this regard, the Commissioner noted the difficulties associated with budgetary and staffing constraints. He stressed the need to strengthen the OCHR financially, particularly in the context of its possible role as a whistleblower protection body.

Ombudsman Diana Kovacheva sent a letter to the Minister of Economy and Industry Bogdan Bogdanov whereby she insisted that the interests of mobile service consumers be protected in a new indexation and price increase, this time for 2024.

30 January 2024

30 January 2024

Ombudsman Diana Kovacheva sent a letter to the Minister of Economy and Industry Bogdan Bogdanov whereby she insisted that the interests of mobile service consumers be protected in a new indexation and price increase, this time for 2024.

Prof. Kovacheva pointed out the need for an objective analysis of unfair business practices and sale methods, unequal terms and conditions of contracts and the explanation of the reasons why mobile operators this year again would take advantage of the opportunity to increase their prices by their indexation.

The reason for the Ombudsman’s recommendation is the intention of Vivacom Bulgaria EAD for a next year in a row to have an indexation of the services tariffs, with an increase of 4.3%, which is equal to the 2023 inflation index as announced by the National Statistical Institute (NSI).

“As you may know, this problem was brought to the attention of the institutions last year and then I expressed a firm opinion against the indexation of the prices of mobile services to adjust to inflation. I put forward specific arguments which now I have to bring to your attention again, as I think they are well-founded but ignored due to economic interests, to the detriment of the Bulgarian citizens,” the Ombudsman wrote.

Prof. Diana Kovacheva insisted that as per Article 3 (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, that reads:

”A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract…”

She pointed to the fact that it is common knowledge that the customers of mobile service operators cannot influence the substance of the contracts with the mobile service operators and often they even encounter obstacles to read the text of the contracts before signing them.

This is so as the term of indexation in the contract does not require the customer’s explicit consent unlike terms such as “the contract’s entry into effect”, “consent given for the processing of personal data” about which it may be inferred that the customer has had the opportunity to negotiate.

“In the understanding of the Commission for Consumer Protection (CCP) vis-à-vis the indexation of mobile services in 2023 and drawing on Art. 144, para 4 of the Consumer Protection Act (CPA) “…the clauses of indexation of prices shall not be treated as unequal terms in the sense of Art. 143, para 2, subpara 13 of the Consumer Protection Act (CPA).” That is, the controlling authority under the CPA sees as lawful for the mobile operator to increase the price while the consumer is stripped of the right in such a case to withdraw from the contract if the finally set price is significantly higher compared to the price agreed upon the conclusion of the contract. In connection with this, I want to emphasize that the legal logic is that Art. 144, para 4 CPA should be interpreted in relation to Art. 144, para 3, subpara 1 CPA that excludes the application in Art. 143, para 2, subpara 13 for services whose price is pegged to index adjustments. The provision of Art. 144, para 4 adds that the condition for this is that the clauses are legal and the method of adjustment of the prices is described clearly and in details in the contract,” Prof. Diana Kovacheva wrote.

She reemphasized that the price of mobile services is not pegged to an index and that indexation is provided for as an opportunity and referred to Decision No. 60095/16.08.2021 on Commercial Case No. 663/2020, Commercial Court, II Commercial Division of the Supreme Court of Cassation.

“The main criterion for applicability of the exception as laid down in Art. 144, para 3, subpara 1 CPA is that the price adjustment is to be attributed to outward circumstances that are beyond the businessman’s control…” “It is the outward circumstances that can justify the adjustment of the price (the interest rate), not the personal authority of the businessman and/or of the provider of financial services that are the reason for the lawmaker to provide for the continuation of the contract and its binding effect on the parties to it thereof regardless of the fact that the party aggrieved by the price increase is always the weaker party, the consumer, whose rights are subject to protection.” The indexation of mobile services prices is not to be attributed to outward circumstances but to the mobile operators’ subjective judgment to apply indexation.

“Therefore, the exception was introduced subject to the businessman’s good faith as presumed by the law, i.e. the businessman’s mala fide conduct renders the special deviation from the general definition of inequality inapplicable. Good faith being there is a prerequisite for the field of application of the provision excluding inequality of Art. 144, para 3, subpara 1 CPA, which follows both from the purpose of this piece of legislation and from the systematic interpretation of the provision in relation to Art. 144, para 4 CPA.“

The Ombudsman pointed out that the reference of the Commission for Consumer Protection (CCP) only to Art. 144, para 4 CPA for the purpose to exclude the application of Art. 143, para 2, subpara 13 CPA is wrong.

Diana Kovacheva is firm that the indexation clause in the contract does not allow consumers to assess the economic consequences of a conclusion of a contract. In her understanding, the Commission’s answer is puzzling: “The indexation clause clearly indicates the amount of the possible increase, namely, the average annual index of consumer prices in the previous year as reported by the National Statistical Institute (NSI). The average consumer can assess the economic consequences of a possible conclusion of a contract.”

“The indexation clause does not clearly indicate the amount of the possible increase; it indicates only that it is adjusted to the average annual index of consumer prices in the previous year as reported by the National Statistical Institute (NSI). There is no way for a consumer, even if he/she is an economic expert, to know what the average annual index of consumer prices will be,” the Ombudsman stressed.

She recalled that in 2023 the government provided support to mobile operators by an adjustment of the Fees Tariff of the Communications Regulation Commission under the Electronic Communications Act to reduce the fees and some of the reasons for that were the promotion of investment; boost of innovation; creation of conditions to put in practice a new generation of mobile networks (5G). Further, she emphasized that those were the very same motives given by a representative of the mobile operators as the reason for the increase of prices through indexation. The result is that mobile operators pay lower fees but continue to increase the prices of mobile services by indexation. As we know, each new tariff plan sets higher prices than the previous one.

“The question arises: is the mobile operator honest in the indexation of prices to adjust them to inflation since the economic behavior of the average consumer who is affected or who is the intended target changes or is likely to change significantly. The answer is: no, the option imposed in the contract to change the monthly subscription fee once a year to adjust to the average annual index of consumer prices in the previous year as reported by the NSI does not conform to the requirement of good faith. Such a business practice is unfair (Art. 68 d CPA)” Diana Kovacheva stated firmly.

Further she wrote that in 2023 the Subcommittee on Monitoring Consumer Protection Activities and Restriction of Monopolies of the 48^th National Assembly held two meetings to discuss the decisions of the three mobile operators – Vivacom, Yettel and А1 to index the tariffs of the monthly subscription plans to adjust to the average annual index of consumer prices in 2022 as reported by the NSI. She noted that despite the commitments made at the time to protect the rights of consumers, the indexation of the prices of mobile services is in progress.

Therefore, the Ombudsman insisted that immediate action be taken to end this practice.