To complain or not to complain

The language of dispute is setting us up to fail, writes Anthony Hurndall.

With the latest talk of a ‘double dip’ recession, ACSeS President Susan Tovey’s recent comments couldn’t be more timely. She described the most pressing challenge for local authority legal teams as the “continued budget cuts and constraints coupled with demand from clients that is increasing in many cases.” I would go further and suggest the public sector cuts we are witnessing are the ‘tip of the iceberg’ – there is far worse to come.

The changing public sector landscape, the surge in the number of procurement challenges and constraints on staffing levels will mean there are smaller teams to deal with the inevitable rise in disputes and complaints – from suppliers, the public and increasingly, other public sector bodies. Has the public sector even begun to think about how it will address this?

Susan Tovey also alluded to the complexities of the Localism Bill and the ‘Power of General Competence.’ It will take public sector legal departments many months to absorb, then consult on these changes, let alone implement them and deal with any ensuing disputes, especially with neighbouring organisations. Public sector ‘infighting’ is a likely scenario as authorities wrestle with local boundary definitions and mapping the new landscape.

With this spiralling pressure from factors such as rising client demand, less and less money, procurement challenges and fewer professionals to process complaints, isn’t it time we took a completely fresh look at our whole approach to complaints and disputes?

Let’s start with the fundamental question of the language we use when we describe ongoing issues between local authority departments and the public, departments and suppliers and increasingly between departments and departments.

I speak regularly at public sector conferences and there is a growing general consensus amongst fellow speakers and delegates. It is this – by even talking about ‘complaints,’ and ‘claims,’ we’re immediately getting into adversarial mode. Negative language contributes to a hostile atmosphere which means the slow, stress-riven road to a courtroom can become an almost foregone conclusion.

All sides quickly and inevitably slide into intractable positions. Talk of a dispute rings alarm bells for overstretched public sector departments and my experience shows that with the threat of litigation or a referral to the Ombudsman there’s an automatic tendency to enter into ‘process mode.’ Because the stakes of “getting it wrong” are so high, professionals become absorbed by the ‘process’ of following the right procedure and ticking all the boxes rather than focusing on the right outcomes.

Currently, dispute processes take months and years to reach resolutions at a cost of millions to many local authorities in internal legal costs alone (according to Freedom of Information Act data). This results in not just massive expense but damaged corporate reputations and all-round disruption and broken relationships.

How has this entrenched position come about? I suggest local government staff are risk averse - they have an underlying fear of dealing with an increasingly confusing landscape, and of making catastrophic career ending mistakes. Procurement pressures and the need quickly to interpret new legislation will only make these pressures more acute.

From my experience, I’d also suggest there is a reluctance to be an ‘early adopter.’ Yet, it’s worth being one of the trailblazers. The whole public sector arena is being redefined following the consultation around the Open Public Services White Paper. The paper outlines how new frameworks will examine whether failure on the part of a public authority or service to provide the choice to which an individual has a right, will constitute a form of maladministration.

This publication also describes the fifth principle of open public services as the “need to be responsive to the people they serve, held to account by citizens and their elected representatives.” What better way for a local authority to demonstrate true accountability and transparency than by embracing a new way of handling complaints and legal claims which is not only more accessible, but is quicker and more cost effective than anything that has gone before.

The White Paper also signals the expansion of the role of the three public service Ombudsmen. But why risk your case landing on an Ombudsman’s desk in the first place? After all, if an Ombudsman or court makes a finding against your organisation, this will eventually be made public and could lead to your case becoming a ‘precedent’ taken into account by other organisations – for the wrong reasons.

So, trailblazers have much to gain from adopting a twenty first century approach to addressing differences – enhanced reputation, massive cost savings (on initial pilots as much as 90%), preserved and improved relationships and improved social cohesion and improved business efficiency in their local communities

The White Paper does much to recognise the value of greater accountability in public services and this is an excellent starting point. I suggest greater accountability in dispute resolution starts with the premise that actually there need be no ‘winners’ or losers’ in the complaints/claims process. Handling an issue maturely in a way which is more solutions driven, is about bringing parties together, hearing all sides, communication, obtaining independent guidance, and conciliation – in fact, a sudden outbreak of common sense.

Anthony Hurndall is a Director of the Centre for Justice, an adjudication service for public, business and government. For more information, call 020 7726 6117 or go to www.centreforjustice.org.