Article by Dame Barbara Mills published in the August 2002 issue of Tax Adviser. The current Adjudicator, Barbara Mills, QC, is a Trustee of Victim Support, a Governor of London Guildhall University, a Board Member of the Royal Free Hampstead NHS Trust, and a Member of the Competition Commission. She took over from Elizabeth Filkin in April 1999. Background
I was delighted to talk recently at the Chartered Institute of Taxation South West section seminar. Informal discussion suggested that there was still less general awareness than I would wish of the work of my office. In around three quarters of the complaints I see, the complainant is unrepresented. It is gratifying that the man or woman in the street is able to navigate their way to my office, but I do wonder whether there might be rather more scope for my involvement in cases where there is professional representation. I am pleased therefore to have this opportunity to tell the readers of Tax Adviser about the role of Adjudicator.
It is now about nine years since my office was established to investigate complaints about the Inland Revenue, and just over three years since I took over from Elizabeth Filkin. The last three years has been a period of change, both within my office and within the departments with whom we work. The Revenue continues to move into areas of work – tax credits and child benefit for example – which just a short while ago would perhaps not have seemed obvious tax authority territory. Customs & Excise – whose complaints we took on in 1995 – have undergone significant restructuring, and their clampdown on ‘smuggling’ has had an inevitable impact on the number of complaints we deal with about Customs.
My own office has also continued to evolve. Inevitably complaints take time to investigate properly, but we are more than ever conscious of the need to eliminate unnecessary delay in our work, and for the first time at 31 March 2002 we had no investigations on hand which were more than 12 months old. With an average throughput time of around five months I think we now strike the right balance between speed and thoroughness.
Role and status
I now investigate complaints about the Revenue (including the National Insurance Contributions Office), Customs, the Valuation Office Agency (an Executive Agency of the Revenue) and, since April 2001, the Public Guardianship Office (an agency of the Lord Chancellor’s Department formed on reorganisation of the Public Trust Office).
The work we do is codified within Service Level Agreements with the departments. These formalise the service I provide for them: an independent review of their complaints handling, and what they do to assist me: the provision of support and facilities.
My role, which is non-statutory, is to review independently the handling of a complaint when a complainant remains dissatisfied with the outcome after final departmental consideration. I cannot investigate complaints until the department’s own complaints handling process has been exhausted; it is that final departmental view of a complaint which I then review.
Unlike the Parliamentary Ombudsman, whose function - as set out in the Parliamentary Commissioner Act 1967 - is to investigate cases of 'maladministration', my role is to measure the performance of departments against their own standards and guidelines. I look therefore to see whether departments have followed their own internal instructions, whether Codes of Practice have been followed, and whether they have otherwise adhered to their own standards. The areas I can look into are set out in my booklets1 available from my office2 or offices of the Inland Revenue, or Customs & Excise's National Advice Service3. Broadly speaking I look at complaints about handling issues:
- poor or misleading advice;
- staff attitude or behaviour;
- how departments have exercised their discretion; and
- how departments have handled requests for information.
But there are a number of matters which I cannot look into:
How complaints are investigated
- I cannot look at matters which can be - or have been - considered by an independent tribunal; for example if there is a dispute about how the law applies, and any resulting tax liability.
- If a matter is or has been investigated by the Parliamentary Ombudsman I cannot look at it, though the Ombudsman can look at complaints which I have investigated, or which are about my office.
- I cannot look at matters relating to a criminal prosecution or investigation - although I may look at handling issues once such proceedings are concluded).
- And I do not investigate complaints about the poor work of accountants, though I am pleased to see that the Revenue is working with representative bodies in identifying agents whose standard of work suggests they may need further training and support. An initiative attributable at least in part to the lobbying of my predecessor.
My assistance team will consider a complaint in the first instance to ensure it is within remit, and in particular to ensure that the relevant department has had the opportunity to consider the issues fully. This initial question of remit will often involve careful judgement. Very often handling issues - which I can investigate - will be bound up with matters of law - which I cannot consider; and we need to ensure that we do not thereby stray into territory which will be considered by a court or tribunal. Often it will be pragmatic to look at the complaint after the legal position has been resolved. We must decide whether there are matters that we can and should investigate now, or whether to wait until the underlying dispute is resolved.
Having established that a case is within remit, we ask the department for a report about the case. When we receive that we have the basis to begin our investigation: the complaint and the department's comments upon it. The case will then be allocated to one of my adjudication officers who will take the investigation forward.
The adjudication officer will consider the complaint and draw together the relevant evidence. This will invariably include any departmental papers, material supplied by the complainant, and will sometimes involve talking to the parties - complainant and departmental staff.
Whilst the investigation at this stage will be thorough, it will also be relatively informal. We want to be recognised as accessible and approachable and we will always explore the scope for resolving a complaint without recourse to a formal Adjudicator's recommendation. This will normally involve an attempt at mediation: trying to find common ground between complainant and department. Sometimes complainants will be satisfied once they are reassured that their complaint has been dealt with by a department in line with other similar complaints; and sometimes an apology is all that is needed where things have gone wrong. In other cases the department may appreciate that it has not gone far enough in recognising shortcomings and will be prepared to go further without my formal recommendation. In all these circumstances there may be scope for resolving the matter informally. In the last year to 31 March 2002 we settled just under 30 per cent of cases in this way. Our emphasis is on achieving a satisfactory resolution by informal means, if at all possible, and year on year we aim to settle a larger proportion of cases in this way.
If we are unable to resolve a case by mediation, the adjudication officer will prepare a report for me, with a draft letter of recommendation, and I will consider the case in detail. I may conclude that more evidence is needed or, occasionally, that I need to speak to those involved personally. Having done this, I will write to the complainant and the department setting out my findings and what, if anything, I have concluded should be done to resolve the complaint. While my letter may be very detailed, I am particularly keen to make it succinct, easily understood and to ensure that it is no longer than absolutely necessary. I am pleased to say that, to date, departments have accepted every recommendation issued both by my predecessor and myself.
What Can I Recommend?
Whether a case is mediated, or concluded by recommendation, the outcome must align with departmental policy. In considering redress, I look at what departments have said they will do where things go wrong. For the Revenue, this is set out in their Code of Practice 1, and for Customs, their Notice 1000. In dealing themselves with complaints, departments can offer a range of remedies as set out in these codes. It follows that those remedies are available for me to recommend. If I conclude that any redress offered is in line with their stated policy in particular circumstances, then I will not recommend more. As I am at the same time constrained by these codes, I am particularly delighted that both have been revised recently, and are now more customer focused and flexible.
Within those codes, redress can take a number of forms:
- Apology: in many cases an apology may be entirely appropriate and, indeed, all that is sought.
- Compensation: sometimes a complainant will have had to incur additional costs - accountancy fees, postage, telephone costs, loss of interest etc - as a direct result of the problem. These can be reimbursed.
- Payment for worry and distress: If the problem has affected somebody particularly badly, then a payment may be appropriate in recognition. Typically though this will be a relatively small sum: £25 to £500, though in extreme circumstances payments can be higher. And if a complaint itself has been badly handled, that can warrant a further payment for the extra bother caused.
- Tax and interest: There will also be some circumstances in which the department is prepared to forgo tax and interest, which would otherwise strictly be due.
All forms of financial redress, however, come from public funds. Departments have a responsibility to us all therefore only to offer such payments in carefully considered circumstances and on an even-handed basis; it is entirely proper that I am equally prudent in considering such action. Nevertheless, in 2001/2002 across all departments, my office resolved cases involving compensation for costs of £211,305, consolatory payments of £22,479, and tax and interest forgone of £256,458.
The wider interest
My office is uniquely placed alongside departments; a position we are able to exploit positively. A key and growing role, and one which distinguishes our functions from that of the Ombudsman, is to use our experience to work with departments in addressing systemic issues. Working collaboratively I can help to ensure that the majority are not exposed to the shortcomings encountered by the minority who complain to my office. I have always felt that this is best achieved in a spirit of co-operation rather than confrontation. And it goes beyond identifying things to be learned from individual complaints after problems have arisen. We are increasingly finding that we can usefully inform policy thinking and so pre-empt complaints. While I cannot consider complaints about departmental policy, I do look for opportunities for involvement in its formulation.
I have very much enjoyed my first three years as Adjudicator. I am still learning from representative bodies, departmental staff, other ombudsmen and complainants. I have developed a good understanding of the competing pressures and priorities, and appreciate better the context when things do go wrong. I have been struck by the willingness of all involved increasingly to recognise that good complaints handling is rightly a central plank in any proper customer service strategy; that it must be properly resourced; and that such resources are productive and cost-effective in helping to ensure and maintain future compliance.
There is some way to go. We still uphold around 40 per cent of complaints which come to my office. And, while in the year to 31 March 2002 the number of complaints about the Revenue fell by around 25 per cent, there was a 45 per cent increase in complaints about Customs. We all share a common goal though, and I see daily evidence of enthusiasm and a desire to ensure future improvement.
1. AO1 and AO2
2. Haymarket House, 28 Haymarket, London SW1Y 4SP; tel.: 020 7930 2292; fax: 020 7930 2298; e-mail: email@example.com; internet; http://www.open.gov.uk/adjoff/aodemo1.htm
3. Tel. 0845 9000
020 7235 9381
August 2002 by