Guidance

DfT Independent complaint assessors - terms of reference

Published 24 October 2022

Introduction

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

• put right any injustice or unfairness suffered by customers
• improve services delivered through the Department for Transport (DfT)
• provide assurance that DfT public bodies have 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, or routinely interview the parties. They are usually unable to adjudicate upon contested versions of events where no independent evidence exists. The ICA process is intended to assist customers and users of DfT or DfT public body services. It is not best designed for resolving disputes between fellow professionals.

The The Department for Transport (DfT) independent complaints assessors (ICAs) provide independent reviews of complaints about the information and services delivered by:

• the central Department for Transport (DfT(c))
• the other bodies reporting to DfT as set out in Annex C

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 Department ICA sponsor, DfT(c), DfT public bodies and the ICAs.

Referral and review process

The scope of the ICA scheme is defined by an agreed protocol that is annexed to these Terms of Reference.

The DfT or DfT public body will tell all complainants that they can ask for an ICA review through being provided with the information about the DfT or DfT public body’s complaints procedure in the final response, including responses to complaints by Members of Parliament and others acting on behalf of the complainant.

The DfT or DfT public body will ensure the complainant knows what the ICAs can do and that they must ask for referral following the DfT or DfT public body’s final response. A standard referral form for DfT or DfT public body is at Annex B.

When the DfT or DfT public body 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, the DfT or DfT public body will 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.

The DfT or DfT public body will usually tell a complainant they can ask for ICA referral after providing a final response. However, in some circumstances the DfT or DfT public body 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.

The DfT or DfT public body may also ask an ICA for advice on a case before its final response.

The DfT or DfT public body 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 the DfT or DfT public body to refer a case to the ICA (a holding letter and explanation should be sent to the complainant if this target is not met).

The ICA will acknowledge receipt of a referral to the DfT or DfT public body and complainant within five working days unless the ICA judges that there is no need to do so in the circumstances. The ICA will give the complainant a contact telephone number, email and postal addresses.

The ICA will decide whether and how much of a complaint is in scope. They will do this after considering the information and documents the DfT or DfT public body gives them and any other information they judge relevant. The ICA needs to keep in mind the public interest while doing this. Factors relevant here include:

For a detailed review

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

Against a detailed review

• the DfT or DfT body has investigated the complaint properly and has found no administrative failure or mistake
• the complainant objects to the DfT or DfT public body’s policy or legislation
• the complainant has or had 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 full review would be disproportionate

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

During the review the ICA may raise queries about the complaint history, or the policy or legal background and the DfT or DfT public body will try to answer these. The DfT or DfT public body 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 interview relevant parties by exception and should tell the DfT or DfT public body (and DfT ICA sponsor if appropriate) beforehand.

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

The ICA will send a draft report to the DfT or DfT public body for it to check for factual accuracy. If the DfT or DfT public body thinks it might be difficult to accept and/or implement the ICA’s draft recommendations, it may comment at this stage.

The review will, where appropriate include the ICA’s findings and conclusions (with reasons) as to:

• whether the DfT or DfT public body has been fair and has met the relevant standards in its administration (including complaint handling)
• where 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.

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

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

Remedies

The ICA may recommend the DfT or DfT public body put right any complaint they uphold by:

• apologising
• giving more information and/or 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 or DfT public body’s decision, action or failure to act

When making a recommendation for any financial payment, the ICA will consider the DtT or DfT public body’s policy, relevant HM Treasury guidance (currently Managing Public Money and the Parliamentary and Health Service Ombudsman (PHSO) documents, Principles for Remedy and Our Guidance on Financial Remedy.

In suggesting any remedy, the ICA will consider the impact and seriousness of any poor service or maladministration on the complainant. The ICA will also consider 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. The ICA will also consider whether anything the complainant did or failed to do made their situation worse.

At the ICA draft report stage, the DfT or DfT public body should try to reach an agreement with the ICA about their findings and recommendations:

• when the DfT or DfT public body does not agree to implement a recommendation, it should tell the ICA at this draft report stage
• if the DfT or DfT public body and the ICA cannot resolve any difference of opinion, the DfT or DfT public body should tell the complainant and the ICA, in writing, after the ICA issues the final report

When the ICA has made recommendation(s) about redress, the DfT or DfT public body must respond to the complainant in writing. A copy of what is sent to the complainant must be sent to the ICA who handled the review.

The DfT or DfT public body 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 Ombudsman.

The DfT or DfT public body 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.

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

Confidentiality/personal information handling

When a complainant makes a complaint to the DfT or DfT public body, they will use the complainant’s personal information. Where appropriate, they will share that information with DfT and the ICA so they can handle the complaint properly. The DfT or DfT public body must ensure that complainants are so advised before any ICA referral is made.

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

The DfT or DfT public body may also use complainant personal data for producing anonymised statistical information.

The DfT or DfT public bodies process personal data relating to a complaint so they can deal with it. Some DfT public bodies are separate data controllers under data protection law.

Where a complaint has been sent to the wrong DfT public body in error, they will forward it to the right one and let the complainant know they have done so.

The DfT ICAs will destroy securely all data about a complaint that was referred to the ICA, including the report, generally after two years. DfT/DfT public bodies have their own data retention and archive policy that they will conform with.

The DfT’s privacy policy 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. ^{[footnote 1]}:

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:

• where the DfT or DfT public body has told the ICA some material they have provided is sensitive, the ICA must not disclose any part of it outside the DfT or DfT public body without first obtaining consent from the appropriate Data Controller(s)
• in rare cases, an ICA might not be able to confirm or deny the existence of data; the DfT or DfT public body must explain this to the ICA in those circumstances

The ICAs must handle all documents and information given to them in line with department and/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 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 the DfT or DfT public body (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.

The ICAs will generally refer only to the ‘preferred first name and/or title/role’ of the member(s) of staff in the DfT or DfT public body referred to in a complaint, not the full name, unless they are members of the senior civil service.

Two years after a review or the issue of the ICAs’ Annual Report including the case (whichever is the later), the ICA should destroy securely all relevant case documents they hold. In line with paragraph 36, the DfT or DfT public body will be responsible for the destruction of any documents stored centrally in line with their own retention policy.

Reporting by ICAs

The ICAs will report every year to the Permanent Secretary of the Department for Transport 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 the Department and/or DfT Bodies
• what recommendations and suggestions, if any, the ICAs made for the improvement and better performance of the DfT or DfT public body complaints procedures and their role
• 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 the DfT or DfT public body should know about

The ICAs will invite the 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 following receipt.

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

Target timescales

Target timescales for the DfT ICA scheme are set out below.

Department and/or DfT public body 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 complainant and Department and/or DfT public body and to inform complainant and delivery Body of proposed timescale for review	5 working days from receipt of completed referral
Department and/or DfT public body to answer queries raised by ICA	15 working days of receipt of query
ICA to issue draft report to Department and/or DfT public body	3 months from receipt of completed referral
Department and/or DfT public body to respond to draft ICA report	10 working days of receipt of draft
ICA to issue final report to the complainant and Department and/or DfT public body	5 working days from response to draft report and within three calendar months of initial referral.

If an ICA thinks they might miss any of these targets, they will tell the DfT and DfT(c) and/or DfT public body as early as possible and explain their reason(s).

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, the DfT or DfT public body considers the complainant has any protected characteristic as outlined in the Equality Act 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 public bodies should give to complainants at or before the final delivery body complaint response is set out here.

ICA referral

You can ask us to pass your complaint to one of the independent complaints assessors (ICA) 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 – the complaint must have been through the DfT or DfT public body’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 Parliamentary and Health Service Ombudsman (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 Parliamentary and Health Service Ombudsman 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, DfT, or DfT public body 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 (that is, the DfT or DfT public body) handle requests for information made under the Freedom of Information Act 2000 or the Environmental Information Regulations 2004
• how we (that is, the DfT or DfT public body) 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

Also, 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

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

The ICA cannot look at any complaint the PHSO has investigated or is investigating.

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 completion by the DfT or DfT public body.

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.] ↩