Guidance

DfT independent complaint assessors: terms of reference

Published 24 October 2022

Introduction 

This document applies to the Department for Transport (DfT) including the central Department (DfT(c)) and its public bodies. Where we refer to DfT in this document, we mean DfT(c) and its public bodies.  

The overall aims of the independent complaints assessor (ICA) process are to: 

• put right any injustice or unfairness suffered by members of the public as customers or in consequence of the actions, inactions, or decisions of DfT 
• improve services delivered through DfT and its public bodies 
• provide assurance that DfT has followed proper procedures, and that maladministration has not occurred 

The role of the ICAs is to review how a particular matter has been handled.  It is a ‘light touch’ procedure. The ICAs: 

• do not conduct primary investigations 
• do not routinely interview the parties 
• are usually unable to adjudicate upon contested versions of events where no independent evidence exists 

The ICA process is intended to assist customers, users of services or dealings with members of the public – it is not best designed for resolving disputes between fellow professionals. 

DfT ICAs provide independent reviews of complaints about the information, services and interactions provided by: 

• the central Department for Transport (DfT(c)) 
• other bodies reporting to DfT 

All complaints intended for ICA review must be referred to the ICAs by DfT.  Complainants cannot refer their cases to the ICAs themselves. 

This guidance sets out expectations of the ICAs and will, subject to annual review, apply throughout the current ICAs’ terms of appointment. 

Any changes in the interim will be subject to agreement between the DfT ICA sponsor, DfT(c), DfT public bodies and the ICAs. 

Referral and review process 

An agreed protocol, defines the scope of the ICA scheme. 

DfT will tell all complainants that they can ask for an ICA review in: 

• their final response to the complainant
• published information about the complaints procedure

This includes responses to complaints made by MPs and others acting on behalf of the complainant.  The ICAs will pass back self-referred complaints to DfT to ensure there is nothing further they can do to resolve before seeking the complainant’s confirmation to refer to the ICAs. 

DfT will ensure the complainant knows what the ICAs can do and that they must ask for referral following their final response.  A standard referral form is available. 

When DfT has completed its own complaints procedure, it must always refer a complaint to the ICAs when asked to do so by a complainant.  Where a complaint is felt to be outside the ICA remit, as set out in these terms of reference, DfT must consult an ICA before the final decision is made.  Decisions about the extent to which a complaint meets the criteria for ICA review will be made by the ICAs. 

DfT will usually tell a complainant they can ask for ICA referral after providing a final response.  However, in some circumstances DfT may decide to refer a complaint to an ICA before it has completed its complaints procedure, given the agreement of the complainant and the ICA. 

DfT may subsequently ask an ICA for advice on a case before its final response. 

DfT will aim to pass a completed referral form, chronology and all data exchanged between the parties to the ICA no later than 15 working days after the complainant has asked DfT to refer the case to the ICA. If this timeline is not met a holding letter and explanation should be sent to the complainant. 

Once the ICA received the referral they will take the following steps.

1. They will acknowledge receipt of a referral from DfT and the complainant within 5 working days, unless the ICA judges that there is no need to do so.   
2. They will give the complainant a contact telephone number, email and postal address. 
3. They will decide whether and how much of a complaint is in scope.  The ICA will do this after considering the information and documents supplied and any other information, they judge relevant.  The ICA needs to keep in mind the public interest and value for the taxpayer as well as the concerns of the complainant. 

Relevant factors for a detailed review are: 

• the complainant has, or might have, suffered significant injustice, loss or hardship 
• DfT’s handling of the complaint has been poor. For example, it has failed to conduct a proportionate and reasonable investigation and has failed to apply an appropriate remedy 
• DfT has asked the ICA to review the case 
• an ICA review may assist in a wider process of organisational learning from the complaint and of promoting consistency and fairness 

Relevant factors against a detailed review are: 

• DfT has investigated the complaint properly and has found no administrative failure or mistake 
• the complainant objects to the DfT policy or legislation 
• the complainant has exercised or has a right of appeal, reference or review through another avenue, for example tribunal or legal proceedings 
• the essence of a complaint is a contractual or commercial dispute 
• a detailed review would be disproportionate 

Having considered the previous factors, the ICA may decide that subjecting the complaint to a detailed review would not meet the overall aims of the ICA review process. 

During the review the ICA may raise queries about the complaint history, the policy or legal background and DfT will try to answer these.  DfT will ensure the ICA has complete access to all the relevant data, documents and information used in responding to the complaint.  This includes third party material. 

An ICA may exceptionally conduct formal interviews with relevant parties but should tell DfT (plus DfT ICA sponsor if appropriate) beforehand.  Phone contact with complainants does not constitute a formal interview. 

The ICA will review the complaint and set out their conclusions about the way the matter has been handled. 

An ICA may discuss a case with another ICA or associate ICA if they feel it would be helpful.  An ICA may also, with prior agreement from DfT ICA sponsor, co-opt an associate ICA to support case handling. 

The ICA will aim to complete their draft review of the case within 3 months. They should tell the complainant and DfT if they think it will take longer and explain the reasons why.  With the agreement of the ICA and the complainant, reviews may be suspended or withdrawn at any point. 

The ICA will send a draft report to DfT for it to check for factual accuracy. 

If DfT thinks it might be difficult to accept or implement the ICA’s draft recommendations, it should comment at this stage.  It should try to reach an agreement with the ICA about their findings and recommendations.  

If DfT and the ICA cannot resolve any difference of opinion or DfT refuses to implement an ICA recommendation, it should tell the complainant and the ICA in writing, after the ICA issues the final report to all parties, with a full explanation as to its reasoning for not complying. 

Exceptionally, the ICA may decide to issue a full (or partial) draft report to the complainant, as well as to DfT.  This will allow all parties to provide their input before the ICA finishes the report. 

The ICA’s final report will, where appropriate, include the ICA’s findings and conclusions, with reasons, as to: 

• whether DfT has been fair and has met the relevant standards in its administration (including in its complaint handling), consistent with the UK Central Government Complaints Standards 
• whether any part of the complaint is upheld, and any recommendation to put it right 
• any recommendation or suggestion for improving the handling of complaints or the matter in question 

DfT must tell the relevant ICA as soon as they are aware that a case an ICA has reviewed has been accepted for investigation by the Parliamentary and Health Service Ombudsman (PHSO). 

DfT should, following receipt of the PHSO’s final report after investigation into a complaint, advise the relevant ICA and the DfT ICA sponsor of the PHSO’s recommendations. 

DfT must write to the complainant and copy in the ICA and DfT ICA sponsor to say whether they accept the PHSO’s recommendations. 

Remedies 

The ICA may recommend DfT put right any complaint they uphold by: 

• apologising 
• giving more information and explanation 
• taking other remedial action 
• paying out-of-pocket expenses (with evidence) 
• paying other financial losses (with evidence) 
• making a consolatory payment, if this is proportionate and necessary, to reflect the inconvenience, injustice, hardship or delay experienced by the complainant because of the DfT decision, action or failure to act 

When making a recommendation for any financial payment, the ICA will consider the DfT policy, relevant HM Treasury guidance (currently Managing Public Money) and relevant PHSO documents, in particular the: 

• Principles for Remedy and Our Guidance on Financial Remedy 
• UK Central Government Complaint Standards 

In suggesting any remedy, the ICA will consider: 

• the impact and seriousness of any poor service or maladministration on the complainant 
• the appropriate steps, if available, to restore the complainant to the position they would have been in had the poor service or maladministration not occurred 
• whether anything the complainant did or failed to do made their situation worse 

When the ICA has made recommendations about redress, DfT must respond to the complainant in writing, to:

• explain whether they will comply with the recommendations
• provide a clear explanation for their decision

A copy of what is sent to the complainant must be sent to the ICA who handled the review. 

Confidentiality and personal information handling 

DfT should make clear to complainants they will share their personal information with the ICAs when they ask for ICA review and before they refer any case to the ICAs.  The sharing of a complainant’s personal data must be agreed with them before it is passed on. 

In the ICAs’ annual report and elsewhere, DfT may publish anonymised data relating to a complaint to show the public how DfT deal with complaints and what DfT ICAs do. 

DfT may also use complainant personal data for producing anonymised statistical information. 

The DfT process personal data relating to a complaint so they can deal with it.  Whilst the DfT executive agencies are within the DfT(c) data controller, other DfT public bodies are separate data controllers under data protection law. 

The DfT ICAs will destroy securely all data about a complaint that was referred to the ICA, including the report, generally after 2 years.  The DfT ICAs may retain data for longer if a case is or is thought likely to be subject to Ombudsman consideration.  DfT(c) and DfT public bodies have their own data retention and archive policies with which they will conform. 

The DfT’s privacy policy^{[footnote 1]} has more information about a person’s rights in relation to their personal data, how to complain and how to contact the Data Protection Officer.  

To conduct a review an ICA might require access to material that is sensitive, for example, because it is confidential, legally privileged or commercially sensitive. If DfT has told the ICA some material they have provided is sensitive, the ICA must not disclose any part of it outside DfT without first obtaining consent from the appropriate data controllers.

ICAs must handle all documents and information given to them in line with department or DfT public body’s requirements for the lawful protection of information, especially personal information. 

As data processors, the ICAs will pass any requests made directly to them for information under the Freedom of Information or Data Protection Acts directly to the relevant DfT public body or to DfT(c).  They must include any relevant documents or information about the request. 

The ICA should copy their report to the complainant and to DfT (and any representative the complainant has specifically nominated to receive a copy of a report, such as an MP).  The ICAs’ reports are not confidential, they should be written with the expectation they could be shared widely particularly by a complainant and therefore enter the public domain. 

The ICAs will generally refer only to the ‘preferred first name’, ‘title’ or ‘role’ of any members of staff in DfT referred to in a complaint, not the full name, unless they are members of the senior civil service. 

Reporting by ICAs 

The ICAs will report every year to the Permanent Secretary of DfT on complaints they have handled in the previous year ending 31 March. The report will include: 

• how many complaints were referred to them 
• how many complaints they upheld, partially or fully 
• what recommendations and suggestions, if any, they made to DfT and other DfT bodies 
• what recommendations and suggestions, if any, the ICAs made for the improvement and better performance of the complaints procedures of DfT or DfT body and business changes that would reduce complaints in the future if adopted 
• a selection of anonymised complaints the ICAs have concluded during the year, to: 
  • highlight issues found in service delivery 
  • encourage others similarly affected to come forward 
  • demonstrate the independence and impact of the ICAs’ work 
  • draw attention to any other matter the ICAs consider DfT should know about 

The ICAs will invite DfT(c) and the DfT public bodies to check a draft of the annual report for the accuracy of sections dealing with their cases. 

The department will publish the ICAs’ annual report and its response to any recommendations on its website as soon as possible following receipt. 

The ICAs will also produce quarterly summary reports to an agreed format. These will also be provided to DfT in draft form before submission to the DfT ICA sponsor. 

Target timescales 

Target timescales for the DfT ICA scheme are set out. 

Action	Timeline
DfT to provide ICA with completed referral and all supporting documents	15 working days of receipt of request for an ICA review
ICA to acknowledge referral to DfT and to inform complainant of proposed timescale for review	5 working days from receipt of completed referral unless an ICA judges that an acknowledgement is not required in the circumstances
DfT to answer queries raised by ICA	15 working days of receipt of query
ICA to issue draft report to DfT	3 months from receipt of completed referral.
DfT to respond to draft ICA report	10 working days of receipt of draft
ICA to issue final report to the complainant and DfT	5 working days from response to draft report and within 3 calendar months of initial referral

If an ICA thinks they might miss any of these targets, they will tell DfT, DfT(c) and the DfT ICA sponsor as early as possible and explain their reasons. 

Equality 

The scheme should be as widely accessible as possible to all sectors of the community, in the same way that DfT’s services should be.  If, while making a referral, DfT considers the complainant has any protected characteristic as outlined in the guidance for the Equality Act 2010 that might require the ICA to adjust their approach to handling the case, it will tell the ICA as soon as possible. 

ICA protocol and referral 

The information DfT should give to complainants at or before the final complaint response is set out. 

ICA referral 

You can ask us to pass your complaint to one of the ICAs if you’ve been through the final stage of our complaints process and are not happy with the response. The ICAs cannot accept referrals direct from complainants^{[footnote 2]} – the complaint must have been through DfT’s own complaints process, unless exceptionally you, we and the ICA agree it can be referred earlier. 

The ICA is: 

• independent of DfT and [insert name of DfT body] 
• a public appointment, not a civil servant 

The ICA looks at whether we’ve: 

• handled your complaint properly 
• given you a reasonable decision 

It does not cost you anything for the ICA to assess your complaint. 

The ICA will need to see all the letters and emails between us.  We’ll aim to send these to the ICA within 15 working days of you asking us to pass your complaint to them. 

The ICA will decide how best to deal with your case and will then contact you. 

If you and we both believe referral to the ICA will not resolve your complaint, then with the agreement of the ICA, the ICA does not have to consider it. Instead, you can ask an MP to refer your case to the PHSO. 

The ICA will aim to review your case within 3 months of receipt.  They’ll tell you if they expect it to take longer. 

When the ICA has reviewed your case, they’ll tell you the outcome and if they’ve made any recommendations.  That ends their involvement with your case, and you should not expect them to engage in further correspondence.  In most cases, your further right of appeal would be to the PHSO via an MP. 

The ICA can look at complaints about: 

• bias or discrimination 
• unfair treatment 
• poor or misleading advice 
• failure to give information 
• mistakes (including decisions, actions and failures to act) 
• unreasonable delays 
• inappropriate staff behaviour 

The ICA cannot look at: 

• regulatory decisions and outcomes 
• disputes where the principal focus is upon government or DfT policy 
• complaints arising from contractual and commercial disputes 
• complaints about the law 
• matters considered by Parliament 
• matters where only a court, tribunal or other body can decide the outcome 
• decisions taken by independent boards or panels, for example applications under the HS2 ‘Need to Sell’ scheme 
• decisions taken by, or for, the Secretary of State 
• legal cases that have already started and will decide the outcome 
• an ongoing investigation or enquiry 
• how we (for example DfT) handle requests for information made under the Freedom of Information Act 2000 or the Environmental Information Regulations 2004 
• how we (for example DfT) handle subject access requests made under the Data Protection Act 
• personnel and disciplinary decisions or actions 
• any professional judgment by a specialist, including, for example, the clinical decisions of doctors or the judgments of driving and vehicle examiners 
• any complaint the PHSO has investigated or is investigating 

Additionally, the ICA cannot usually look at any complaint that: 

• has not completed all stages of our complaints process 
• is more than 3 months old from the date of the final response from us 
• is currently subject to police investigation or court proceedings 

If your complaint falls within the first 2 categories that the ICA cannot usually look at, you should tell us why you believe the ICA should review it. We’ll send your explanation with your complaint to the ICA. 

Mutual respect 

The ICAs will behave in a respectful manner and expect the same in return.  They cannot tolerate behaviour that creates an intimidating, abusive or offensive environment or which undermines their safety or wellbeing.  Steps will be taken to address such a situation should it arise, which can include but is not limited to restricting their contact with complainants whose behaviour is felt unreasonable. 

ICA referral form 

ICA referral form (word) for DfT completion.

List of DfT bodies coming within the ICA jurisdiction 

The DfT bodies affected are: 

• British Transport Police Authority (BTPA)^{[footnote 3]}
• Civil Aviation Authority (CAA) 
• Driver and Vehicle Licensing Agency (DVLA) 
• Driver and Vehicle Standards Agency (DVSA) 
• High Speed Two Ltd (HS2 Ltd) 
• LCR Property/London & Continental Railways (LCR) 
• Maritime and Coastguard Agency (MCA) 
• National Highways (NH) 
• Network Rail (NR)^{[footnote 4]} 
• Vehicle Certification Agency (VCA) 
• central Department for Transport (DfT(c)). 

Footnotes 

1. This privacy policy covers the central Department (DfT(c)), its executive agencies and investigation branches only.  Other DfT bodies have their own privacy policy on their websites.  Other data controllers should amend this paragraph as appropriate so that it refers to their own privacy policies. ↩

2. With the sole exception of complaints about the HS2 Residents Commissioner.   ↩

3. Not the British Transport Police. ↩

4. Network Rail does not come within the jurisdiction of the PHSO.  Complainants who remain dissatisfied following an ICA review should be advised to contact an MP who can raise the matter with DfT or with a minister.  ↩