Immigration complaints (part 2)
By Robert Thomas (University of Manchester Law School)
This is the second of three blogs on immigration complaints. This first blog examined the key trends, features, and criticisms of immigration complaints. This blog looks at the outcomes of immigration complaints and discusses the importance of government collecting data on complaint outcomes.
As highlighted in the first blog, immigration complaint handling is a high-volume area of complaints. What then are the outcomes of immigration complaints handled by the Home Office? There are two ways of approaching this.
First, we can look at reported cases. The Home Office does not publicly any information about individual complaint investigations; very few, if any, public bodies – let alone central government departments – do. So, the principal source of information we have is from those complaints escalated to the Parliamentary and Health Service Ombudsman (PHSO). In this respect, there is a considerable amount of evidence of serious mistakes, including some disgraceful instances of maladministration which are then compounded by poor quality initial complaint-handling. The PHSO has also found that the two most common areas of the complaints it has received and upheld concern the poor quality of the initial handling of those complaints by the department and individuals receiving an insufficient remedy when their complaint was upheld.
But, as ever with complaints, we need to bear in mind that not everyone whose complaint is found to be unsubstantiated by the Home Office will then escalate it to the PHSO. Further, there are well-known limitations on people accessing the PHSO. The MP filter is really a relic from a bygone age and should have been reformed long ago, but it still exists and operates.
A second way of approaching complaint outcomes is then to look at the statistical data. How many complaints are substantiated, partially substantiated, or unsubstantiated? These are pretty basic questions in terms of providing transparency. After all, there is data on the outcomes of tribunal appeals. We have also data on immigration complaints investigated by the PHSO. What then of government complaint-handling?
In the absence of any published official data on the outcome of immigration complaints handled by the Home Office, I submitted a FOI request to the Home Office request this data. Given my years of researching immigration decision-making, asylum appeals, and immigration judicial reviews (amongst other areas of administrative law and administrative justice), I had anticipated that the Home Office may be reluctant to release the data. But I (naïvely) assumed that data on complaint outcomes actually existed and that all that would be required was for someone at the Home Office to extract the data from its complaint management systems and put them into a FOI response. Evidently, I still needed to be educated. The Home Office’s response to my FOI request was as follows:
Under Section 12 of the Freedom of Information Act, the Home Office is not obliged to comply with an information request where to do so would exceed the designated cost limit of £600 specified in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.
It may be helpful to explain that the Departments which this question relates to (Border Force, UK Visas & Immigration and Immigration Enforcement) do not automatically record the outcome of a complaint (substantiated, unsubstantiated or partially substantiated) centrally, it is recorded it in the notes part of the system and therefore to provide this data would mean checking individual records for the period requested. This would exceed the £600 limit and we are therefore unable to comply with your request. The £600 limit is based on work being carried out at a rate of £25 per hour, which equates to 24 hours of work per request. The cost of locating, retrieving and extracting information can be included in the costs for these purposes. The costs do not include considering whether any information is exempt from disclosure, overheads such as heating or lighting, or items such as photocopying or postage. (my emphasis)
So, in other words, the Home Office’s systems do not enable the data to be collected in a readily accessible way. The explanation here is the Home Office’s age-old IT system. In 2014, the NAO concluded that the department’s IT systems were largely unchanged and teams relied upon on multiple and complicated legacy systems with limited integration or data sharing, and on paper systems. The flagship Immigration Case Work (ICW) programme was supposed to replace the legacy Casework Information Database and 20 other systems by combining all casework interactions with people. The Department closed the programme in August 2013, having achieved much less than planned. The old legacy IT systems rely upon manual entry of free text information, which makes it basically impossible to analyse systematically. The Home Office is introducing a new computer system (ATLAS) and this should include a complaint management and record system, although I do not know for certain whether this is the case.
The benefits of using complaint outcomes
The lack of data on complaint outcomes does not seem to be a matter of deliberate concealment by the Home Office, but it does have a range of unfortunate consequences. Contemporary thinking about complaint-handling is based on the idea that data about complaint outcomes can be fed upwards and used by senior higher-level boards to assess performance and to drive improvements. In 2014, the Public Administration Select Committee (somewhat hopefully) noted that ‘Complaints must be valued from the very top of an organisation and seen as something to be welcomed.’ Indeed, the Home Office’s annual report 2019-20 (p. 66) notes that the department ‘believes that complaints are an opportunity to improve its services’. It views complaints as opportunities to learn about the quality of the service it provides and to improve them. According to the Home Office, ‘“We own” the complaint on behalf of the organisation; the complainant “owns” the original issue.’
All of that sounds very welcome, but from another perspective, it is either good intentions or cliched rhetoric. What is really necessary is for government departments to have the right systems and processes in place by which they can effectively manage and learn from complaints. But if the department’s systems do not even collect the relevant data about complaint outcomes, then it is difficult to see how it can make the best of them and learn for the future; without data, complaints outcomes cannot be measured let alone managed. This results in an undesirable and avoidable lack of transparency both inside and outside the department. Within the department, it is difficult to see how senior managers and Ministers can properly understand complaint outcomes if there is no systematic data. It is difficult to see how senior boards can understand what is at happening at the front line, the types of problems that people who interact with the department are experiencing and what can be done about them.
It is possible that less formal qualitative data is fed upwards, but without quantitative data on complaint outcomes, then it is difficult to understand how senior officials can have a wider and more systematic understanding on what is going on. It also seems difficult to understand how trends can be analysed and compared. It is equally difficult to see how the laudable notion of learning from complaints can be put into practice. It seems that the only metrics available are the timeliness of complaint responses, but not than outcomes.
There are also obvious weaknesses from the lack of data when it comes to public transparency in terms of the public knowing about complaint outcomes and as regards parliamentary and other types of scrutiny.
Moreover, it is not just the Home Office. The Department for Work and Pensions, for instance, only publishes the total number of complaints received in its annual report (p 81). Another FOI to the DWP has revealed that the DWP does not collect data on the outcomes of complaints. Its response? ‘No information is held.’
If anything, the DWP is worse than the Home Office. At least, the Home Office categorises complaints received into service, minor misconduct, and serious misconduct. The DWP does not hold information on complaint categories. Like the Home Office, it does not have information about complaint outcomes. But does the DWP, like the Home Office, hold information about the average amount of time taken to resolve initial complaints? Its FOI response:
We do not calculate average timeliness and to do so we would need to look at each case individually. Therefore, the Department is unable to provide any of the information you seek within the appropriate cost limit.
Some readers may recall the NAO’s 2005 report Citizen Redress which recommended that government collect more data and information about complaints. That was published in 2005 – sixteen years ago. But as regards two major government departments that undertake millions of interactions with individuals – the Home Office and the DWP – little, if any, progress has been made.
This lack of data on complaints outcomes is wholly inadequate. There is a legitimate public interest in knowing the outcome of complaints to public bodies. The outcomes of complaints should be properly recorded centrally. It should not be necessary to have to resort to FOI requests. This type of data should ordinarily be released online as part of the department’s transparency data. This really should be standard practice across government.
It is also inadequate when set against accepted standards of good administration. The PHSO’s Principles for Remedy includes the principle that public bodies must seek continuous improvement. That is, they should use the lessons from complaints to ensure that maladministration or poor service is not repeated. Similarly, the Principles of Good Administration include the principle that public bodies should be open and accountable and operate effective complaints procedures.
It flows naturally from these principles that government should be as transparent as possible by providing data on complaint outcomes and the actions taken as the result of substantiated complaints. Government data on complaints needs to be much more detailed in terms of issues complained about, the timeliness of complaint-handling, the characteristics of complaints, and should be checked and approved by National Statistics (if necessary). Data on complaint outcomes should therefore be published and should be accompanied by a detailed statement and explanation from the department about the nature of substantiated complaints and the actions then taken to resolve them and to change and reform systems and processes as appropriate. Unless there is a good reason for not doing so, these actions should be undertaken.
In 2020, the Chief Inspector of Borders and Immigration recommended greater transparency as regards the nature of immigration complaints received by the Home Office and, in particular, the lessons learned and the changes and improvements made as a result. Done properly, the inspector thought that this type of information could go a long way to demonstrating that the Home Office takes complaints seriously and is truly as “customer focused” as it claims to be.
Another reason for collecting data on complaints concerns their usefulness for government when it comes to looking forward and identifying trends and problems that may well escalate into major issues if not acted upon quickly. This is directly relevant in light of recent systemic failures by the Home Office. The Windrush scandal was an entirely avoidable and foreseeable systemic failure that could have been prevented if relevant sources of information, including complaints, had been collated together and examined systematically by the Home Office. But these early warning signs were missed or ignored by the department leading to Windrush. There is, then, a real need for information on complaints to be linked up with other pieces of information as part of an early warning system to spot trends and problems and deal with them before they escalate into a full-scale disaster such as Windrush.
The Windrush Lessons Learned Review recommended that the Home Office look for risks and listen to early warning signs:
The Home Office should invest in improving data quality, management information and performance measures which focus on results as well as throughput. Leaders in the department should promote the best use of this data and improve the capability to anticipate, monitor and identify trends, as well as collate casework data which links performance data to Parliamentary questions, complaints and other information, including feedback from external agencies, departments and the public (with the facility to escalate local issues). The Home Office should also invest in improving its knowledge management and record keeping.
Linking up different types of data in this way is certainly a good way of triangulating information from different sources within the department to identify potentially problems. But again, how can this be done if data on complaint outcomes are not recorded centrally?
In its response to the Windrush review, the Home Office said that it would better manage its records and had already begun to move staff to a single digital repository for information, to invest in new search tools and update our paper file management systems:
This is likely to take 18 to 24 months and includes training and support in good information and records management practice, behaviours and culture. We intend to track how successful our approach is through measuring usage rates of the electronic file management system. We are improving our management information to allow the Home Office to better identify risks, look for early warning signs and then act.
Matters such as having and publishing detailed data on complaints, using complaints to take action to improve systems, and also publishing detail on the action take are not and should not be seen as things that are ‘nice to have’. They are an essential feature of a good complaint handling culture. After all, if we take government departments at their word that they view complaints as opportunities to improve their services, then it seems difficult to see why they do then provide publish what changes and improvements they have made in practice in response to specific complaints. There is a very wearisome set of cliches whenever anything goes wrong within government. Public bodies say that they will learn appropriate lessons, but what is actually required is the detail about what changes will be made in practice.
There are some potentially encouraging signs elsewhere in government. Consider another large-scale system: tax. In its 2019-20 annual report (p 51), HMRC has produced (some) data on complaint outcomes – 51 per cent of initial complaints were upheld in 2019-20 – and on complaints escalated to the second-tier complaint-handler, the Tax Adjudicator’s Office. HMRC has also published its first response to the Adjudicator’s Office annual report. HMRC could provide more detail and data, but, when compared with the Home Office and DWP, it seems to be significantly further ahead in being more transparent about how it is using complaints to improve.
The next blog will consider immigration complaints made by people in immigration detention and how the system of immigration complaints could be improved.
This blog is part of a wider piece of work on administrative law and immigration administration, which will be published as: R Thomas, Administrative Law in Action: Immigration Administration (Oxford: Hart Publishing, 2022).
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