The SPSO and compensation claims

Transcription

1 Scottish Public Services Ombudsman advice leaflet: compensation The SPSO and compensation claims We provide a free, independent and impartial service for dealing with complaints about public services in Scotland. You may feel that an organisation provided a poor service, delivered a service badly or failed to provide a service. If this has caused you hardship or injustice, we may be able to look into your complaint. We can normally only deal with complaints if you have already gone through the complaints procedure of the organisation that provided the service. This leaflet tells you what you can do if you think you should claim compensation from a public body. It also explains what we can and cannot do about compensation claims. In many situations, only a court can decide if compensation is to be awarded and decide what amount to award. If you have suffered because of the actions of a public body, and think that you should receive financial compensation you should read this leaflet. Call us on freephone if you d like to talk to us about your complaint. freephone This leaflet is a guide to our approach to handling complaints in this area. However, every complaint we receive is considered on its own merits and individual circumstances may mean this approach is not the best or most appropriate one to use. This means that the information this leaflet contains should not be considered definitive.

2 Information about compensation Compensation can mean different things. It can mean the amount of money a court says that an organisation should pay to an individual (or company) who has suffered as a result of a failing by the organisation. The amount of money is often called damages by the court. The court would only say that an organisation should make such a payment if they had found them responsible in law. This is known as being legally liable, and may be because the organisation has been negligent. The type and amount of damages you can claim and what actions do or do not make an organisation legally liable can only be established by a court. Sometimes, money can be given to a person as a result of a complaint. This may be described as compensation but is very different from what happens in court. When we make a recommendation that a person be given money as a result of a complaint, we usually use terms like redress or goodwill payment to make the difference clear. You may also make a compensation claim to an organisation. This means you have told the organisation you think they are legally liable and wish to claim money from them. The organisation may put this claim to their insurance company. If the organisation or their insurers decide they have failed and you have suffered as a result, they may decide to pay you compensation without you needing to go to court. Please note that it is not our role to review decisions made by organisations on compensation claims. Only a court can look at legal liability between individuals and organisations. If you would like a decision on liability changed you would need to go to court. page 2

3 Compensation and SPSO FAQs Compensation can be a confusing and complex area. It is an area that we are often asked about but where we can do very little. To help clarify our role in relation to compensation claims, here are some examples of frequent questions and our responses. Q The council have caused me a problem. I am unhappy and want them to fix it. To fix it, I think they should pay me money. I don t want to go to court, can the SPSO help me? If you are unhappy with the council, you should first report the problem to them to try to get things sorted out. The SPSO can normally only look at complaints that have gone through the council s complaints process. If you remain unhappy after doing this, you can ask us to look into your complaint. When we get your complaint we will look at what happened, and find out whether there was a fault on the part of the council. If we find a fault on their part, and if it s still not sorted out when you complain to us, we would think about ways to put things right for you. In this situation, we might ask the council to apologise to you; make a repair; or change their procedure to make sure the problem did not happen again. In some situations we may recommend a payment if that is the best way to fix the problem. For example, if a council tenant had had to spend money on a repair that the council should have fixed, we may recommend they should have that money back. We would call this redress. We would not recommend you receive a payment for stress, or work out how much you might be due if you have suffered a personal injury. Only in rare situations will we recommend that a specific payment is made for the time and trouble taken to make a complaint. This would only happen if the way your complaint had been handled had been very poor and would only be a modest payment for inconvenience. We have a policy on redress, and we can send this to you if you ask for it. If you have internet access you can read it online at Q I d like to claim compensation, can the SPSO help me? A decision to award financial compensation or damages is made when it has been established by a court, or agreed by both parties to the dispute, that an organisation is legally liable for a specific problem. The SPSO cannot establish legal liability, nor can we award compensation. If your main aim is to get compensation, you should consider seeking advice on making a claim for compensation from an independent advocate or legal adviser. Q I made an insurance claim through a scheme operated by a public service organisation and I don't think they have dealt with it properly what can I do? Some organisations have a system in place for dealing with claims for compensation. They may put your claim to their insurance company to see if they should make a payment to you. If you have made an insurance claim to an organisation and are unhappy with the result, you can t complain to us about that decision, but you could complain to us about the way they handled the claim if you felt it wasn t done properly. For example, if you think that all the information was not considered, or if you think that you ve not received a full explanation, you could ask us to look into it. If we found that the claim could have been handled better or if a more detailed explanation should have been offered, we might make recommendations to the organisation to put things right. We might ask them to give you a better explanation or to reconsider your claim. Advice line freephone page 3

4 Arbitration There are some cases where the law says that instead of going to court you can have a compensation decision reviewed by another route. For example, some Scottish Water decisions could be taken to arbitration. Arbitration is designed to be simpler than going to court but you may still have to pay costs and you will still need expert advice if you want to take this option. Compensation can be a very complex area. If you are unsure about our role or what we could do to help, please call us about your complaint and we can give you advice about what we can do, before you make a decision about which route to choose. Advice line freephone Some tips for claiming compensation from an organisation > Most organisations have a standard process for dealing with claims for compensation. You can ask them for details. Claims are usually directed to an organisation s insurance company or claims provider. > Keep receipts of any work you need done and take photographs of any damage. Copies of these may need to be provided as evidence. > If your own insurance company were involved and have paid you money for damage, they may be able to seek repayment from the organisation. If you are unhappy with your insurance company you should ask them for details of their complaints process. page 4

5 A quick guide to the SPSO and compensation claims What we can look into We can look at how a public service organisation dealt with your claim for compensation. We can look at whether they acted properly in the way they handled it and if not, whether this has caused you problems. We might be able to consider complaints about a public service in respect of action they did or did not take, for example if they: > took an unreasonably long time to answer your claim > didn t do something that they said they would do > didn t follow their own procedures when considering your complaint > didn t take into account the relevant rules and regulations > didn t explain their decision clearly. If we find that the proper process hasn t been followed or that the claim or eventual complaint has not been properly handled, we can ask the organisation to take action to put things right. You should note that we can t: > award compensation to anyone > look at the amount of compensation awarded to an individual or the date on which the payment is due to be paid > take complaints about matters that have been dealt with in court. We also can t question an organisation s decision on an individual compensation claim, unless there is evidence that there was something wrong in the way the decision was made. We can t make them change a decision but we may ask them to review it if we find things have gone wrong. We understand that this can be complicated so please call us if you want to ask whether your complaint is one that we re likely to be able to look at. A complaints reviewer is always available to talk to you when the office is open. Our opening hours and contact details are at the end of this leaflet. How we put things right If we find that something s gone wrong, then as well as putting things right for you we want to try and stop the same thing happening to someone else. That s why some of our decisions and reports also have recommendations. These may include recommending that the organisation apologise or change their procedures. We may ask them to return the situation to what it would have been if they d acted correctly in the first place. We will look carefully to see what happened and how you have been affected. We will check that the organisation carry out our recommendations. We also make some of our investigations public. We do this to share what we have learnt from complaints and to help improve how public services are delivered in Scotland. page 5

6 How to complain to SPSO > Write to us and tell us what happened. It s best to use our complaint form if possible. You can find this on our website at where you can fill it in online or print it off to complete. Or phone our freephone helpline number on and we will send you one. > Tell us what went wrong, and what you would like to happen to get things put right. > Send us copies of the main paperwork about your complaint. Please make sure you include the final response you received from the organisation after you complained. It also helps if you send us your original letter of complaint to them. Can someone else make a complaint for me? Yes, if you give them written permission. Phone us on and ask for a consent form. You can get help from your local Citizens Advice Bureau, where an adviser can help you fill in a complaint form or complain for you. Your Member of the Scottish Parliament (MSP), councillor, Member of Parliament (MP), or a friend or relative may also be able to help. Advice line freephone

7 We can give you this leaflet in other languages and formats (such as large print or Braille) if you ask. Contacting us If you re not sure whether we can look at your complaint, please contact us. You can also call us if you re not sure whether you have gone through the complaints procedure of the organisation you are unhappy with. If appropriate, we ll guide you through that. We re happy to talk to you. One of our complaints reviewers is always available to discuss your complaint with you. You can contact us by phone, in writing or by visiting our office. You don t need to make an appointment. ISSUED: 05/13 Our address is: Our Freepost address is: SPSO SPSO 4 Melville Street Freepost EH641 Edinburgh Edinburgh EH3 7NS EH3 0BR Opening hours: Monday, Wednesday, Thursday, Friday 9am 5pm, Tuesday 10am 5pm Freephone: Website: Mobile site: The information in this leaflet is for general guidance, and was accurate when written. However, you should not rely on it as an authoritative statement of Scots law or of any process/guidance mentioned. SPSO will not accept liability for any consequences resulting from the use of this information. If you want to know more about an organisation mentioned or their processes please contact them direct. page 7

8 Scottish Public Services Ombudsman