COMPLAINTS MANAGEMENT GUIDANCE
Handling, management and resolution of complaints and the
Process
information obtained from complaints
Implementation Date
5/11/2009
Next Review Date
February 2010
CONTAINS MANDATORY INSTRUCTIONS
For Action
Author and Unit
All Agency staff who handle complaints from <REDACTED> Complaints and Correspondence
external customers.
Standards and Performance Directorate
For Information
Owner <REDACTED> Complaints and Correspondence
Al Agency staff and stakeholders
Standards and Performance Directorate
Contact Point
Processes Affected Al processes around complaints, compensation and Ombudsman investigation handling within the
Agency
Assumptions Complaint handlers have sufficient knowledge of their areas to be able to substantively address the
issues raised by customers. Customer Service Units will have their own local processes for managing
complaints but these must be consistent with the principles outlined in this guidance.
NOTES
Issued 5/11/2009
Version v2
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CONTENTS
1. Introduction
1.1
Overview of this guidance
1.2
Complaints about HMRC functions and customs officers
2. Complaint management structure
2.1 Introduction
2.2 Customer-facing staff and managers
2.3 Nominated Responsible Owners (NROs)
2.4 Customer Service Units (CSUs)
2.5
The Complaints and Correspondence Standards and Performance Directorate
(CCSPD)
3. Types of complaint handled
3.1
Definition of a complaint and main categories
3.2
Forms of complaint accepted
3.3
Timescales for the submission of complaints
3.4
Factors to consider in deciding whether to investigate an out-of-time complaint
3.5
Issues that wil not be dealt with under the complaints process
3.6
Serious incidents
3.7
Parliamentary and Health Service Ombudsman (PHSO) complaints
3.8
Prisons and Probation Ombudsman (PPO) complaints
3.9
Independent Police Complaints Commission (IPCC) referrals
4. Dealing with complaints: general principles
4.1
Introduction
4.2
Categorisation
4.3
Registering and recording
4.4
Ownership
4.5
Transferring complaints
4.6
Acknowledgements
4.7
Complaints which can be resolved immediately
4.8
Responding to the customer
4.9
When a customer remains dissatisfied
4.10 Compensation
4.11 Management of risk
4.12 Learning from complaints
4.13 Complaints surrounding detention and removals
4.14 Complaints from children
4.15 Anonymous complaints
4.16 Third party complaints
4.17 Withdrawn complaints
5. Service complaints
5.1
Examples of service complaints
5.2
Direction and control
5.3
Timescales for dealing with service complaints
5.4
File management and complaint storage procedures
5.5
Risk management
5.6
Learning lessons
5.7
Review process
6. Minor misconduct complaints
6.1
Introduction
6.2
Timescales for dealing with minor misconduct complaints
6.3
Local resolution
6.4
Guidance for managers conducting local resolution
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6.5
File management and complaint storage procedures
6.6
Risk management
6.7
Learning lessons
6.8
Review process
7. Serious misconduct complaints
7.1
Introduction
7.2
Allegations of discrimination
7.3
Investigation into allegations of criminal behaviour
7.4
Who will investigate the complaint
7.5
File management of serious misconduct cases
7.6
The investigation – preparation
7.7
The investigation - communication
7.8
The investigation process – interviews and evidence gathering
7.9
The investigating officer’s report
7.10 The investigation process – Disclosure of evidence
7.11 The outcome of the investigation
7.12 Possible actions following an investigation
7.13 Risk management
7.14 Learning lessons
7.15 Review process
8. Special circumstances
8.1
Closing complaints before resolution
8.2
Action while a complaint is under investigation
8.3
Complaints received in grounds of appeal
8.4
The Data Protection Act 1998
8.5
Freedom of Information Act 2000
8.6
Complaints mentioning legal action and County Court claims
9. Complaints from the Parliamentary and Health Service Ombudsman (PHSO)
9.1
Introduction
9.2
Overview of PHSO complaints process
9.3
Premature complaints
9.4
Handling premature complaints
9.5
Request for further information
9.6
Handling requests for further information
9.7
Full investigations
9.8
Handling full investigations
9.9
Legacy referrals
10. Unreasonably persistent customers and unacceptable behaviour
11. Compensation guidance
11.1 Introduction
11.2 Maladministration
11.3 Exceptional circumstances
11.4 Actual financial loss
11.5 Claims for non-financial loss
11.6 Death of a customer
ANNEX A HMRC guidance on compensation for damage to vehicles
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Section 1
Introduction
1.1
Overview of this guidance
1.1.1. The UK Border Agency is committed to providing a professional, fair, efficient, courteous
and helpful service to the public. Dealing with complaints effectively and efficiently is a core
element of the Agency’s service to our customers. Complaints provide essential feedback so that
the Agency can learn lessons, improve its service and provide the opportunity to put things right.
The Agency should not be defensive about complaints but should use them as an opportunity to
listen, learn and improve.
1.1.2. A complaint is defined as
“any expression of dissatisfaction about the services
provided by or for the UK Border Agency and/or about the professional conduct of UK
Border Agency staff including contractors”.
1.1.3. This guidance is about managing complaints from or on behalf of external customers only.
It is not designed for dealing with internal complaints concerning UK Border Agency staff, or
issues for which there are other remedies, policies or procedures in place, such as Freedom of
Information requests, requests under the Data Protection Act or the Agency’s Human Resources
policies.
1.1.4. Nor is the complaints system intended to provide a remedy for those dissatisfied with the
actual decision in their case or complaints about legislation or policy. More detail about what wil
be treated as a complaint can be found in Section 3
.
1.1.5. This guidance provides essential information about complaint handling for:
• any staff who may receive or deal with complaints;
• Nominated Responsible Owners (NROs) for complaints within the business;
• Customer Service Units (CSUs);
• Staff in the Complaints and Correspondence Standards and Performance Directorate
(CCSPD).
1.2 Complaints about HMRC functions and customs officers
1.2.1 Following Royal Assent of the new Borders, Citizenship and Immigration Act 2009 certain
customs functions and staff at the border will transfer from HMRC to the UK Border Agency.
From 5 August 2009 they wil formally become part of the Agency and the Agency wil assume
responsibility for existing complaint cases on hand and new complaints arising after the transfer
but which relate to the actions of HMRC officers prior to transfer.
1.2.2 An operational protocol has been agreed between the Agency and HMRC covering the
transitional arrangements for the management of complaints before, during and after the formal
transfer. This protocol can be found on Horizon at:
http://horizon/IND/Manuals/OperatingProtocols/Resources/word/Complaints_Handling.doc
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Section 2
Complaint management structure
2.1 Introduction
2.1.1 Al staff have a responsibility to ensure that any complaint the Agency receives is dealt with
appropriately. The Agency’s internal complaint management structure consists of:
• Customer-facing staff
• Nominated Responsible Owners (NROs) within each business area
• Customer Service Units (CSUs) within each region or centrally-managed operational area
• The Complaints and Correspondence Standards and Performance Directorate (CCSPD)
2.2 Customer-facing staff and managers
2.2.1 Customer-facing staff are those that deal with the customer personally; either face-to-
face, by phone, letter or email. They may receive a complaint or be required to respond to one.
Managers in customer-facing areas also have a role to play. Full details of responsibilities of
customer-facing staff and managers can be found in Chapters 3, 4, 5 and 6.
2.3 Nominated Responsible Owners (NROs)
2.3.1 The NRO is the main point of contact within each business area. They ensure that
complaints are dealt with within time and that responses are full and accurate. They are also the
person the CSU wil liaise with to monitor the progress of complaints. CCSPD wil liaise direct
with the NRO to progress Parliamentary and Health Service Ombudsman (PHSO) cases. The
NRO is likely to be a Team Leader or Case Owner in the relevant business area.
2.3.2 For practical purposes not every area within the business wil have NROs. In these cases
the CSU wil assume al the responsibilities of the NRO as well as their own duties.
2.3.3 While this guidance wil assume that each area has both an NRO and a CSU where it
refers to an NRO and your region/area does not have one that part of the process wil be carried
out by your CSU.
2.4 Customer Service Units (CSUs)
2.4.1 CSUs are responsible for the management of complaints about delivery of services and
minor misconduct in relation to services or staff located in their region or operational area. CSUs
ensure that complaints are answered on time by the correct person and will assess any
compensation claims arising. Serious misconduct complaints are managed by the Professional
Standards Unit (PSU) of CCSPD owing to the specialised and serious nature of these
complaints.
2.4.2 In addition to each region, a number of central business functions have their own CSU.
• Detention Services
• Border Force
• Case Resolution Directorate
• Immigration Enquiry Bureau (IEB) Croydon
• Criminal Casework Directorate
• International Group
2.4.3 Contact details of the CSUs can be found on the UK Border Agency website.
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2.5 The Complaints and Correspondence Standards and Performance Directorate
(CCSPD)
2.5.1 CCSPD has overall responsibility for complaint management within the UK Border
Agency. Its responsibilities include:
• Ownership of the complaint policy and this guidance
• Supporting CSUs in understanding and delivering their objectives; e.g. where an Agency
wide unified approach is required (see 11.3.4)
• Investigation of complaints alleging serious misconduct on the part of a UKBA member of
staff or contractor towards a customer (through its Professional Standards Unit)
• Management of the Agency’s handling of complaints referred to it by PHSO
• Maintaining and developing the independent oversight arrangements for the Agency’s
most serious complaints, incidents and conduct matters (where police-like powers are
used).
• Monitoring and ensuring compliance with the complaints management process
• Providing management information to senior managers
• Communicating the complaints process to customers
• High level stakeholder engagement
• User support for the electronic Complaints Management System (CMS)
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Section 3
Types of complaint handled
3.1 Definition of a complaint and main categories
3.1.1 Complaints are defined as
“any expression of dissatisfaction about the services
provided by or for the UK Border Agency and/or about the professional conduct of UK
Border Agency staff, including contractors.”
3.1.2 Complaints dealt with under this guidance are from members of the public or their
representatives relating to all aspects of the Agency’s service delivery and the professional
conduct of its staff. Complaints about the conduct and efficiency of those contracted to act on
behalf of the Agency also fall within this guidance. Letters from an MP representing a customer
are dealt with under normal procedures for answering MPs Correspondence.
3.1.3 The three main categories of complaint are: service, minor misconduct and serious
misconduct.
3.1.4 Service complaints are related to the way that the Agency works (typical complaints
would be about delay, lost documents of administrative failings). These complaints are both
about the actual service provided and the operational policies that the Agency operates. The
handling of service complaints is covered in detail in Chapter 5.
3.1.5 Minor misconduct is usually to do with isolated instances of rudeness and unprofessional
conduct which are not serious enough to warrant a formal investigation and if substantiated they
would not lead to criminal or disciplinary proceedings. The handling of minor misconduct
complaints is covered in Chapter 6.
3.1.6 Serious misconduct is any unprofessional behaviour which, if substantiated, would lead
to disciplinary action. The handling of serious misconduct complaints is covered in Chapter 7.
3.2 Forms of complaint accepted
3.2.1 Complaints wil be accepted in English and Welsh only (
in accordance with the Welsh
Language Act 1993.) Complaints may be accepted in any of the fol owing formats (where local
facilities are available):
• Letter
• Telephone
• Fax
• E-mail
• Face to face
3.2.2 If complaints are received in any other language they should be returned requesting they
are re-submitted in English or Welsh.
3.2.3 The one exception to this is in the detention centres. Complaints are accepted in other
languages and translation costs are met either by the Agency or the Detention Contractor.
Replies are sent only in English.
3.3 Timescales for the submission of complaints
3.3.1 Complaints alleging misconduct should be made within
three months of the date on which
the matters complained of first occurred or came to their notice. An investigation may be
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conducted into a complaint not made within this period if it is considered that there are exceptional
circumstances to warrant one.
•
Complaints involving allegations of minor misconduct:
It is for the Customer Service Unit (CSU) to decide whether the circumstances are so
exceptional as to warrant an investigation.
•
Complaints involving allegations of serious misconduct:
It is for the Professional Standards Unit (PSU) to decide whether the circumstances are so
exceptional as to warrant an investigation.
3.3.2 Apart from delay service delivery complaints should be made within 3 months of the date
on which the matters complained about first occurred or came to their notice. It will be for the
CSU to decide if complaints made after three months are so exceptional as to warrant
answering.
3.3.3 The timescales for the PHSO to consider complaints referred by MPs are also longer
than misconduct complaints. The PHSO normally won’t investigate a complaint sent to an MP
more than 12 months after the event although she does have discretion to do so.
3.3.4 Timescales for the handling and resolution of complaints are covered in Sections 5, 6 and
7 with guidance on handling each type of complaint.
3.4 Factors to consider in deciding whether to investigate an out of time complaint
3.4.1 The following is a guide of what factors to consider but is not exhaustive:
• Allegations of criminal activity
• Discrimination of any kind
• Cases where the customer could not reasonably have been expected to make their
complaint within this timescale, e.g. they were out of the country or had medical issues
• Risk to the business if the complaint is not dealt with
3.5 Issues that will not be dealt with under the complaints process
3.5.1 The process set out here is not relevant for complaints about:
• The merits of an individual decision (e.g. refusal to renew leave to remain) for which
there are established appeal routes
• Legislation or Government policy: which would be dealt with under normal
correspondence handling processes. (Operational policy, how the Agency directs and
controls its officers and officials is dealt with as a service complaint, see Section 5.)
• Refusal to disclose information requested under the Freedom of Information or Data
Protection Acts; these should be referred to the appropriate team
• Al egations made against other Agency customers; these should be referred to the
Evidence and Enquiry Unit
• A complaint lodged by an MP. (If an MP’s complaint alleges serious misconduct then it
would stil need to be referred to the PSU to investigate.)
3.5.2 Complaints which are considered to be unreasonably persistent or are abusive, offensive
or threatening wil not be investigated. For more detail please see Section 10.
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3.6 Serious
incidents
3.6.1 Serious incidents are not in themselves complaints but can lead to them as well as
necessitate investigation similar to serious misconduct complaints.
3.6.2 Serious incidents are incidents and events outside of the usual business that have
serious consequences. Serious incidents can include:
• Death of a person
• Serious injury to any person
• Hostage taking of any person
• Attempt or threat of suicide
• Riot/public disorder
3.6.3 If a serious incident involving UK Border Agency personnel is happening now or it is ‘live’
it must be relayed immediately to the Command and Control Unit (CCU). The CCU operates a
24 hour service, 7 days a week.
3.6.4 The CCU is the single point of contact for the Independent Police Complaints
Commission and all ‘live’ incidents MUST be referred by staff to CCU at the first possible
opportunity. Where cases are referred to PSU by CCU PSU will need to identify the area that
the incident is about and notify the respective CSU.
3.6.5 Once a ‘live’ incident is brought under control, CCU wil then hand responsibility for
managing the case and ongoing liaison with the IPCC to the Professional Standards Unit.
3.6.6 The Agency’s policy on handling critical incidents can be found in Chapter 44 of the
Operational Enforcement Manual.
3.7 Parliamentary and Health Service Ombudsman (PHSO) complaints
3.7.1. The PHSO deals with complaints from members of the public who claim they have
suffered injustice due to maladministration by a Government department or agency.
3.7.2 It is expected that the customer should fol ow the Agency’s internal complaints and
review procedures before referring their complaint to the PHSO. If the customer remains
unhappy after their case has been reviewed by the Agency they can ask their MP to refer their
case to the Parliamentary and Health Service Ombudsman for investigation. Details about the
PSHO and managing these complaints can be found in Section 9.
3.8 Prisons and Probation Ombudsman (PPO) complaints
3.8.1 The PPO deals with complaints from people held in detention so within the UK Border
Agency its remit is complaints from people held in immigration detention facilities, short-term
holding facilities and prison service establishments. The Ombudsman also produces an annual
report detailing anonymised examples of complaints received; recommendations made and
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responses received; selected summaries of fatal incidents and number and type of
investigations mounted.
3.8.2 As with the PHSO, the PPO wil only usually get involved after the customer has been
through the Agency complaints process. Unlike the PHSO people in detention can approach
them direct; the referral does not need to be made via an MP. See also 5.6.6 and 5.6.7 of this
guidance.
3.8.3 The PPO wil approach the detention centre the complaint is about and deal with them
direct. A copy of their report into the complaint is passed back to the detention centre as well as
the Detention Services CSU.
3.9 Independent Police Complaints Commission (IPCC) referrals
3.9.1 The IPCC’s remit is limited to England and Wales.
In regard to serious complaints, incidents or conduct allegations if certain criteria are met the
matter must be referred to the IPCC. The criteria for a mandatory referral to the IPCC requires
that it must involve one of the following: a death or serious injury; serious assault; serious
sexual offence; serious corruption; criminal offence aggravated by discriminatory behaviour; or
any incident which engages Articles 2 (the Right to Life) or 3 (against inhuman or degrading
treatment) of the European Convention on Human Rights.
a. if the matter relates to a UKBA officer or official performing immigration/asylum
functions then an police-like power (such as arrest, detention, search) must also
have been exercised.
b. if the matter relates to a UKBA officer or official performing customs functions then
the matter is referable whether or not a police-like power has been exercised.
The police-like powers are listed in section 41 of the Police and Justice Act 2006 and include:
• Powers of entry
• Powers to search persons or property
• Powers to seize or detain property
• Powers to arrest persons
• Powers to detain persons
• Powers to examine persons or otherwise to obtain information, (including power to take
fingerprints or to acquire other personal data), and
• Powers in connection with the removal of persons from the United Kingdom
Please note that these powers include:
• Surveil ance and associated activity
• The non-exercise of the above powers (e.g. the failure to use a power when required to
do so. This wil be restricted to matters relating to officer’s conduct and wil not cover
UKBA Policy decisions for example, not to detain in certain cases)
The powers do not include:
• The making of an immigration decision
• The making of any decision to grant or refuse asylum
• The giving of any direction to remove persons from the UK
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3.9.2 The IPCC also has the power to ‘call in’ and oversee any complaint or conduct matter
due to its gravity or exceptional circumstances. Similarly, the UK Border Agency can voluntarily
refer any complaint or conduct matter to the IPCC.
3.9.3 Depending on the nature of the incident or complaint, the Professional Standards Unit
(PSU) (see section 8 on serious misconduct) may be appointed by the IPCC to undertake an
investigation into the matter. Alternatively, PSU wil provide support and a single point of contact
for a Police or IPCC investigation.
3.9.4 The Commissioner wil inform PSU in writing of which of the following modes of
investigation will be employed:
•
IPCC independent investigation: in which the IPCC would use its own investigators to
look into the incident or complaint but a PSU investigator might be required to compile
some evidence and act as single point of contact for UKBA. There is no right of appeal to
the IPCC in these cases.
•
IPCC-managed investigation: in which the Police or UKBA PSU undertakes the
investigation under IPCC’s direction and control. The IPCC would agree the Terms of
Reference for the investigation and monitor progress against them. There is no right of
appeal to the IPCC in these cases.
•
IPCC-supervised investigation: in which the Police or UKBA PSU would have control
and direction of their own investigation. The IPCC would agree the Terms of Reference
for the investigation and monitor progress against them. These cases give a right of
appeal to IPCC.
•
Local investigation: in which the Police would make their own investigation (if there is
alleged criminal activity); or UKBA PSU make their own investigation, with no further
involvement from IPCC. These cases give a right of appeal to IPCC.
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Section 4
Dealing with complaints: general principles
4.1 Introduction
4.1.1 Some general principles apply to the handling of all categories of complaint. You should
read this section in conjunction with the sections that discuss the specific handling of the
different complaint categories (service, minor misconduct and serious misconduct).
4.2 Categorisation
4.2.1 When you receive a complaint decide whether the complaint is about standards of
service or about the conduct of staff, or both. This wil determine the process to be followed for
resolving the complaint and wil help to determine who should take ownership of it.
4.3
Registering and recording
4.3.1 Al complaints must be registered on the Complaints Management System (CMS) in order
to keep track of its progress and enable tracking and reporting on complaints received. CMS must
be used by all Customer Service Units (CSUs) and Nominated Responsible Owners (NROs)
where it is available and all complaints, their outcomes and any compensation claimed for and
paid must be logged on the system. Where the complaint is received direct by the business it
should be copied to the CSU or NRO for inputting onto CMS.
4.3.2 CMS wil only be available to people involved in managing complaints so the complaints
and their resolutions wil also need to be captured on CID (where a CID record is available) and a
copy kept on file.
4.3.3 At the time of publication of this guidance not all CSUs are on CMS. Where a CSU does
not have access to CMS then they must record all complaints on the Data Capture Sheet
provided by CCSPD. The Data Capture Sheet for each month must be sent to CCSPD within two
working days of the month ending.
4.3.4 Where the complaint has been received verbally, you should record the details of the
customer’s complaint and copy this to your CSU who wil register the complaint directly onto the
Complaints Management System (CMS). In some business areas, where local processes allow,
NROs may also be able to register complaints onto CMS.
4.3.5 In some business areas it may not be practical to attempt to record all verbal complaints,
received and resolved to the customer’s satisfaction at the initial point of contact. Where this is the
case a decision can be taken not to record these. This decision must be taken by a Director (G5
or equivalent) but only with the prior approval of the Director of CCSPD.
4.3.6 It is important for the Agency to learn lessons from complaints and where a decision is
taken not to record immediately resolved verbal complaints consideration must be given to how
the area wil monitor and identify trends in these complaints.
4.3.7 When a service or minor misconduct complaint is resolved, by someone other than the
NRO, a copy of the response should be sent to the CSU or NRO, highlighting any outstanding
compensation or other next steps, so that they can update CMS with the outcome (e.g. whether
the complaint was substantiated or not, date of the response etc) and attach the response to the
complaint record.
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4.3.8 CCSPD has produced a Complaint Registration Form (CRF) that the customer can use to
make a written complaint. These can also be used by staff to log a complaint from a customer.
CRFs can also record each part of the process as the complaint is progressed so that the CSU or
NRO can update CMS as required.
4.3.9 Individual CSUs can take the decision not to use CRFs when processing complaints. If
they do the onus is on them to provide a robust system for ensuring that the minimum subset of
information recorded on the CRFs is captured to allow CMS to be updated.
4.4 Ownership
4.4.1 Serious misconduct complaints are never dealt with by the business area in which the
alleged misconduct took place. Instead, these should be sent on immediately to the relevant
Customer Service Unit (CSU) for onward referral to the Professional Standards Unit (PSU)
within 24 hours. Al egations of discrimination and racism are classed as serious misconduct and
are for PSU to investigate; see section 7 and particularly 7.2 for further information. (Any
serious critical incidents that are ‘live’ involving a member of staff with police-like powers should
be referred to the Command and Control Unit.)
4.4.2 Complaints about service or minor misconduct should be dealt with by the business area
in which the matter complained about took place.
4.4.3 Minor misconduct complaints must be referred to the line manager of the subject of the
complaint, or to another relevant manager if the line manager is not available, to resolve
through the local resolution process.
4.4.4 Where a complaint contains elements of more than one category all separate elements
should be investigated and resolved. Sometimes a complaint contains elements that cannot all
be answered by the same business area. In these cases the receiving business area should co-
ordinate responses on all the separate elements seeking help from the NRO or CSU as
necessary.
4.5 Transferring
complaints
4.5.1 If the complaint cannot be dealt with by the business area receiving the complaint send it
to your CSU for re-al ocation. This wil stop complaints from getting “lost” by being passed from
person to person. Some NROs with high complaint volumes may have scanning equipment and
be able to register complaints. If this is the case local processes may allow the NRO to register
and reallocate complaints to other local teams.
4.5.2 If the complaint comes in directly to the CSU, the CSU must either allocate to the correct
NRO or transfer to another CSU if it is for another region or business area. The CSU should scan
the letter onto CMS, register the complaint and allocate it to the appropriate CSU.
4.6 Acknowledgements
4.6.1 If the complaint cannot be resolved
within two working days of receipt by the owning
business area, the NRO or CSU wil send a written acknowledgement to the customer with
contact details of the person who is handling the complaint. If it is likely that the response cannot
be sent within the published timescale of 20 working days of receipt within the Agency the
acknowledgement letter should tell the customer when they can expect to hear from us.
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4.7
Complaints which can be resolved immediately
4.7.1 Sometimes a complaint about service or minor misconduct can be resolved straightaway.
This may come about when all that is needed is a simple explanation and apology, or a
straightforward problem can be fixed for the customer. Where a complaint can be resolved
immediately it should be. If the customer is present then written confirmation of resolution may not
be necessary however a record of how the complaint has been resolved wil need to be
maintained and copied to the CSU or NRO for inputting onto CMS.
4.8
Responding to the customer
4.8.1 Al customers have to be informed of the outcome of their complaint, whether it is
substantiated or not as well as any steps the Agency is taking as a result of it. This does not
necessarily need to be in writing, sometimes it is sufficient to give a verbal response to a
customer who has complained.
4.8.2 Where a written response is provided the line or duty manager must quality assure that
response (whether for posting or e-mail). A copy of the response; confirmation of who quality
assured the reply; and a summary of any other steps that need to be taken, including who is
responsible for taking them, must be sent to the CSU or NRO so that they can be logged onto
CMS.
4.8.3 If the response was not in writing let your NRO or CSU know straightaway that you have
resolved the complaint, whether or not the complaint was substantiated and any pertinent points
arising from discussions with the customer. The CSU or NRO must log these details onto CMS.
4.8.4 Any written response is potentially going to contain personal information as defined by the
UK Border Agency Information Management policy and must be protected accordingly. The full
policy on handling personal data can be found at http://horizon/ind/im/index.asp. In particular
personal information should not be sent by electronic means without being encrypted. If a
customer requests that we respond to their complaint by e-mail we should inform them that this is
not a secure channel and recommend that the reply be encrypted. The customer can choose to
waive this but must explicitly put in writing that they don’t want any e-mail reply encrypted.
4.9
When a customer remains dissatisfied
4.9.1 If a customer is dissatisfied with how the Agency has dealt with their complaint, there are
processes for reviewing this internally, and in some cases externally as well. See chapters 5, 6
and 7 for the review processes appropriate to each type of complaint. The right to a review should
be signposted in any written response to complaints.
4.10 Compensation
4.10.1 The CSU or NRO should consider whether the customer has suffered an actual financial
loss or extreme distress. If this is the case the CSU wil consider the appropriate level of
compensation in accordance with the guidance in section 11.
4.11 Management of risk
4.11.1 Complaints may indicate areas of risk for the business. This may be through the nature
of individual complaints (usually serious misconduct), the volume of complaints being received,
or an increase in the number of complaints being received in a particular area or about a
particular issue.
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4.11.2 CSUs and NROs should be alert to risks in their own region or business area and
manage any identified through the appropriate local or regional risk register in accordance with
the UK Border Agency’s risk management processes. More details on the management of risk
can be found on Horizon.
4.11.3 The Complaints and Correspondence Standards and Performance Directorate (CCSPD)
wil identify national trends that individual regions may not be able to identify in isolation. Where
risks are identified that impact a strategic business area or the organisation as a whole, CCSPD
wil flag them up to the relevant business area risk leads.
4.12 Learning from complaints
4.12.1 Complaints are an important source of information for improving customer service and
business performance. Lessons can be learned from individual cases and from regional,
national and business area trends. Learning lessons may prevent repeated complaints about
the same issue.
4.12.2 Lessons may be identified by staff who received the complaint, by local managers,
NROs, CSUs or by CCSPD. The business is accountable for implementing changes resulting
from the lessons learned process.
4.12.3 The NRO or CSU should record under the “next steps” screen of CMS details of issues
identified for further action in relation to individual complaints. The CSU can also do this. The
CSU is responsible for tracking progress and should chase the action owner within 24 hours of
the agreed action deadline passing.
4.12.4 CCSPD wil gather information on complaint trends and volumes on a national basis.
CCSPD wil be responsible for identifying national or cross-cutting issues and will identify action
owners and keep a lessons learned log for these issues.
4.13 Complaints surrounding detention and removals
4.13.1 Detention Services have a complaints procedure that follows the prison service model
whilst following UK Border Agency principles. This means that there are some differences. Staff
and contractors working in immigration removal centres, short term holding facilities, holding
rooms or escorting should read the Detention Services guidance manual in conjunction with this
guidance.
This procedure is available at:
http://horizon/IND/Manuals/Detention/Resources/dso/13-
2008%20Complaints%20Handling%20within%20Detention%20Services.doc.
4.14 Complaints from children
4.14.1 It is particularly important that complaints from children are accepted, managed and
resolved properly. Customer facing staff need to undertake the Agency’s ‘keeping children safe’
training and be aware of the Agency’s ‘keeping children safe from harm’ code of practice to
ensure that children with whom the Agency has contact have easy access to complaints
procedures. A complaint made by a child should be handled sensitively and staff should be
alert to any indications that a child may be at risk and take appropriate action.
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4.15 Anonymous
complaints
4.15.1 Whether or not a customer chooses to disclose their identity does not affect the need for
the Agency to consider the issues raised and deal with them appropriately. Anonymous
complaints should be dealt with under these procedures insofar as possible.
4.16 Third party complaints
4.16.1 Legal representatives, sponsors or others (e.g. family members or even casual
observers) may complain on behalf of someone else. Disclosure of any personal or case
information to third parties should follow the guidelines set out in IDI Chapter 24. If the person
who made the complaint is not an authorised representative of the customer in question or
legally responsible for them it may not be appropriate to disclose the outcome of a complaint
investigation (e.g. if the response would update on the progress of an application), or even to
conduct an investigation (where a misconduct case involves seeking further information from
the customer). In these cases you should send an acknowledgement and explain that the
complaint cannot be investigated without a written authorisation from the customer. However
where serious misconduct has been alleged, the case should always be passed to the CSU to
refer to PSU for possible investigation.
4.17 Withdrawn
complaints
4.17.1 If a customer decides to withdraw their complaint the Agency should try to establish the
reason. The fact that a complaint is withdrawn does not necessarily mean that there is no issue
to address. If the complaint raises serious issues you should consider whether the complaint
should be investigated in the usual way.
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Section 5
Service
complaints
5.1
Examples of service complaints
5.1.1 Service complaints are related to the way that the Agency works. They are usually
categorised under one of the following headings:
• Delay (e.g. in delivery of a service)
• Administrative/process error (failings in the process, administrative error, poor service or
failure to meet service standards)
• Poor communication (failure to keep customers informed; failure to answer
correspondence, return calls etc)
• Wrong information (provision of poor, misleading, inadequate or incorrect advice)
• Lost documents (e.g. passports or birth certificates submitted by customers that have
been mislaid)
• Customer care – physical environment (complaints relating to tangible, physical aspects
of the service such as access, up to date equipment and accommodation as well as the
ease and convenience with which it can be used)
• Customer care – availability of service (loss of access to services, for example IT or other
equipment breakdown)
• Customer care – provision for minors (failure to take the particular needs of children into
account)
• Customer care – complaint handling (failure to respond to a complaint or dissatisfaction
with the response)
• Direction and control of officers and officials (see section 5.2 for more details)
5.1.2 For management purposes the Complaints Management System (CMS) can be
configured to collect local sub-categories of these.
5.2 Direction and control
5.2.1 A member of the public is entitled to ask questions about the way in which immigration,
asylum and customs functions are delivered and if dissatisfied to complain about that service.
5.2.2 A complaint that relates to direction and control is one that relates to:
• Operational enforcement policies (where there is no issue of conduct)
• Organisational decisions
• General operational standards of relevant officers, relevant officials of the Secretary of
State or officials exercising customs revenue functions
• Operational management decisions (where there is no issue of conduct)
• Local policies and operating procedures (where there is no issue of conduct)
5.2.3 Direction and control is exercised by UK Border Agency managers who have legitimate
independent operational responsibilities and discretion as to how best fulfil those
responsibilities. They operate by virtue of a formal delegated authority from the UK Border
agency’s Chief Executive Officer/Director of Border Revenue either directly or indirectly.
5.2.4 For example a local enforcement office manager has discretion in how they provide
enforcement functions for their locality. They may develop local policies and operating
procedures within the overall Agency framework. Such local policies and procedures are
covered by the term ‘direction and control’.
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5.2.5 Operational enforcement policies may be national, regional or local in form and set out
the standard, expected, ways of working which should ordinarily be carried out in prescribed
conditions. It is accepted that in exceptional circumstances it is both appropriate and acceptable
to depart from these policies. Such decisions are made by way of operational management
decisions.
5.2.6 Operational management decisions are the result of decision making in reference to an
assessment of available evidence. Such decisions include:
• The agreement of business plans
• The decision to make specific recommendations to senior managers/ministers on policy
and practical matters
• How to best manage resources (decisions relating to prioritisation)
• Those made in reference to available intelligence, gathered surveil ance information and
risk assessments (where there is no issue of conduct)
5.3
Timescales for dealing with service complaints
5.3.1 If you cannot resolve a complaint about service straightaway (within two working days of
the correct business area receiving it) then an acknowledgement should be sent within two
working days (normally by the NRO) and a substantive reply within 20 working days of the date
that the UK Border Agency first received the complaint.
5.4
File management and complaint storage procedures
5.4.1 Service complaints are kept on the personal file (Home Office file) of the customer. They
remain on the file at all times and a copy of the reply to the customer must also be kept on file.
If a customer does not have an existing personal file, a local file wil need to be created in which
to store the complaint. Files should carry the appropriate protective marking in accordance with
the Agency’s information management policies.
5.4.2 Where the customer has a CID record a summary of their complaint and the Agency’s
response should also be recorded there.
5.5 Risk
management
5.5.1 Owing to the large number of service complaints received it is not viable to individually
risk assess every case that is received. However it is important to identify and manage risks
associated with the most common categories of complaints. Information on the categories of
complaints received is accessible via the Complaint Management System (CMS) to both the
Customer Service Units (CSUs) and the Complaints and Correspondence Standards and
Performance Directorate (CCSPD) and wil identify:
• The highest volumes of complaints by category, region and business area
• Emerging trends
• Performance against tackling previously identified trends
5.6 Learning
lessons
5.6.1 The majority of lessons learned from service complaints are likely to arise through the
analysis of trends. If the CSU identifies an issue which needs to be addressed, they should
determine the action owner.
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5.6.2 In a small number of cases lessons may be learned from individual service complaints
and further actions may arise (for example, if a complaint were to relate to a leaflet containing
incorrect information). In this case the person checking the response should decide if the action
can be dealt with local y. If there is an issue which cannot be dealt with within the immediate
team then it should be referred to the CSU to determine the correct action owner.
5.6.3 In rare cases, an individual service complaint might suggest action to be taken at a
national or strategic level. This may be because it affects a whole operational area or the entire
organisation, rather than being limited to a specific team or region. Any cases like these should
be urgently referred to CCSPD.
5.7 Review process
5.7.1 CSUs are responsible for reviewing the handling of service complaints by the business.
They wil not however reinvestigate individual cases themselves.
5.7.2 The CSU wil acknowledge a request to review a complaint within two days of receipt. They
wil review the steps taken to resolve the complaint and if they deem the investigation to have
been insufficient they wil consult the Nominated Responsible Owner (NRO) to find out what went
wrong and ensure that the issue is addressed.
5.7.3 If the CSU judges that the process was so flawed as to affect the outcome of the complaint
they wil ask the NRO to re-consider the complaint under the correct process.
5.7.4 The CSU wil provide a response to the complainant with their findings within 20 working
days of the request to review the complaint.
5.7.5 If a customer remains unhappy they can ask their MP to raise their complaint with the
Parliamentary and Health Service Ombudsman (PHSO) For more information see section 9.
5.7.6 If a customer who was, or stil is, subject to immigration detention is unhappy with the
outcome of their complaint they also have the opportunity to take their complaint to the Prisons
and Probation Ombudsman (PPO).
5.7.7 Customers submitting their case to the PPO must do so within three calendar months of
receiving a substantive reply through the Agency’s own complaints procedure, or no reply to their
complaint after 6 weeks of making it. The PPO wil not normally accept complaints where there
has been a delay of more than 12 months between the complainant becoming aware of the
relevant facts and submitting their case to the PPO, unless the delay has been the Agency’s fault
and the PPO considers that it is appropriate to do so. However, the PPO has discretion to
investigate those where there is good reason for the delay, or where the issues raised are so
serious as to override the time factor.
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19
Section 6
Minor misconduct complaints
6.1 Introduction
6.1.1 Misconduct complaints relate to the conduct or behaviour of individual members of
Agency staff, including contractors.
6.1.2 Minor misconduct is usually to do with isolated instances of rudeness and unprofessional
conduct which are not serious enough to warrant a formal investigation and if substantiated they
would not lead to criminal or disciplinary proceedings.
6.1.3 Some examples are:
• Incivility
• Brusqueness
• Isolated instances of bad language
• An officer’s refusal to identify themselves when asked
• Poor attitude, e.g. being unhelpful, inattentive or obstructive
6.1.4 Any behaviour which, if substantiated, would lead to disciplinary action is classed as
serious misconduct and such allegation must be passed via the Customer Service Unit (CSU) to
the Professional Standards Unit (PSU). Section 7 sets out the kinds of behaviours which would
warrant a formal investigation under the serious misconduct procedure. If in any doubt, consult
your CSU for advice.
6.1.5 Addressing minor misconduct has always been part of local line management
responsibility. Where the complaint is an isolated instance of minor misconduct it should be
resolved through the local resolution process below.
6.1.6 If the complaint is part of a larger pattern of repeated minor misconduct concerning a
staff member it may be more appropriate to address it through the Agency’s disciplinary
procedure. A formal investigation by PSU would not be part of this process. Aspects relating to
the processing of the complaint and responding to the customer wil stil be handled under this
policy.
6.2
Timescales for dealing with minor misconduct complaints
6.2.1 If the line manager (or other relevant local manager) cannot resolve a complaint about
minor misconduct straightaway (within two working days of the correct business area receiving it)
they should send an acknowledgement within two working days and reply substantively within 15
working days of the date that the UK Border Agency first received the complaint.
6.3 Local
resolution
6.3.1 Local resolution is about resolving, explaining, clearing up or settling a complaint. The
aim is to provide a speedy and satisfactory resolution to a complaint. It involves management
commitment to improving services and a wil ingness to acknowledge that a situation could have
been handled differently or better.
6.3.2 In many cases, if the customer is present, it offers the opportunity to resolve the
complaint immediately by talking to the customer to clarify the issues, explain our operating
procedures, agree the actions to be taken and where appropriate offering an apology.
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6.4
Guidance for managers conducting local resolution
6.4.1 The manager should act as quickly as possible in seeking a resolution. Resolving minor
issues promptly benefits the customer, the official against whom the complaint was made as
well as the business.
6.4.2 If the complaint lacks specifics a telephone conversation with the customer may help to
clarify issues and avoid additional correspondence. The line manager may also need to talk to
other people who witnessed the incident. Due to the nature of the incidents dealt with under
minor misconduct it wil generally not be necessary to seek out information from sources which
are not readily available.
6.4.3 Local resolution should be proportionate to the complaint. Line managers will always
need to talk with the staff member the complaint was about but have discretion to determine
how formally they need to proceed.
6.4.4 When speaking to the staff member the line manager should explain:
• Why the matter is being treated as a minor misconduct complaint
• The purpose of local resolution
• That there will be no disciplinary action taken as a result of the complaint (unless it is as
part of a larger bundle of evidence)
• That any training needs that are identified wil be followed up.
6.4.5 In a local resolution, the staff member does not have the same right to representation
from a trade union or other colleague as in a disciplinary investigation. If at any stage serious
issues emerge and a disciplinary investigation or PSU investigation is deemed necessary the
staff member concerned wil have the right to representation as part of the formal process.
6.4.6 Where the complaint is resolved on the spot a note of all contact with the customer and
actions taken should be maintained and copied to the NRO or CSU for logging onto the
Complaint Management System (CMS). Where it is decided to issue a written response to the
customer a copy should be set to the NRO or CSU for logging onto CMS.
6.4.7 The customer should be informed of how their complaint was resolved. If they are
unhappy with the outcome they should be advised of the review process.
6.5
File management and complaint storage procedures
6.5.1 Al paperwork relating to a minor misconduct complaint must be kept securely at all
times. On completion of the complaint all paperwork must be sent to the Complaints and
Correspondence Standards and Performance Directorate (CCSPD). The Performance and
Assurance Unit (PAU) wil raise one ‘Personal – Protect’ file per region per quarter for minor
misconduct complaints. When the files have been audited PAU wil return them to General
Registry for storage.
6.6 Risk
management
6.6.1 Minor misconduct complaints are considered to be low risk cases. A risk assessment of
individual cases is not required. However, as with service complaints, it is important to identify
and manage risks associated with the most common categories of these complaints.
Information on the categories of complaints received is accessible via CMS to both the CSUs
and CCSPD and wil identify:
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• The highest volumes of complaints by category, region and business area
• Emerging trends
• Performance against tackling previously identified trends
6.7 Learning
lessons
6.7.1 Many minor misconduct cases wil result in feedback or training for the individual staff
member concerned. Some cases may additionally indicate points for wider learning or
consideration within the Agency.
6.8 Review
process
6.8.1 If a customer is unhappy with the handling of a minor misconduct complaint they can ask
the CSU to review the process. The CSU must review the case within 20 working days. They
wil look at the paperwork to ensure that local resolution was appropriate and that the
conclusions were warranted from the evidence provided.
6.8.2 Where staff with police-like powers are involved the CSU wil seek advice from the PSU.
Only where PSU decide that local resolution was inappropriate wil a formal investigation be
carried out by PSU.
6.8.3 If the evidence suggests that the manager handling the complaint showed bias; the
investigation was incomplete, inadequate or flawed; or appropriate steps to address
unprofessional behaviour were not taken the CSU should contact the Nominated Responsible
Owner (NRO) (or their manager if the concern is about the NROs handling of the case) to take
the matter further as appropriate.
6.8.4 The customer retains the right to take their complaint to the Parliamentary and Health
Service Ombudsman (PHSO) or, in the case of a customer who was, or stil is, subject to
immigration detention, to the Prisons and Probation Ombudsman (PPO). See sections 5.6 and
section 9.
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Section 7
Serious misconduct complaints
7.1 Introduction
7.1.1 Before action is taken to resolve a misconduct complaint consideration needs to be given
as to whether it constitutes an allegation of minor or serious misconduct. Serious misconduct is
any action or behaviour of a UKBA staff-member or contractor which, if substantiated, would lead
to disciplinary action.
7.1.2 Al egations of serious misconduct must be investigated independent of line management
and are not suitable for local resolution. The Professional Standards Unit (PSU) or the Security
and Anti Corruption Unit (SACU) are responsible for investigating all allegations of serious
misconduct where a complaint has been received from non-UKBA staff or contractors.
7.1.3 Cases can only be referred to PSU internally by CSUs or through the Command and
Control Unit (CCU) following a serious incident.
7.1.4 Al serious misconduct complaints should be sent through to PSU who wil decide whether
it is within the remit of SACU and should be for them to investigate. PSU wil then refer the
complaint onto SACU.
7.1.5 Serious misconduct complaints can fall into one of the following categories:
• A specific allegation of racism or other discrimination
• Al egations of criminal behaviour (4 types: Assault/Sexual Assault/Fraud/Theft)
• Unfair treatment (including harassment)
• Unprofessional conduct (this may include: incapacity when dealing with customers
either through the influence of alcohol or substance abuse or behaviour that could
bring the Agency into disrepute)
7.1.6
Minor misconduct, which would be suitable for local resolution (see Section 6), can
include:
• Isolated instances of offensive language
• Isolated instances of rudeness
• Isolated instances of not responding to complaints
7.1.7 Repeated instances of minor misconduct complaints should normally be dealt with by line
managers (through either additional training and/or the discipline procedure) and are unlikely to
need a formal investigation by PSU. Advice about this can be sought from the Human Resources
Advisors in the first instance.
7.1.8 Once a complaint has been referred PSU wil decide whether the case should be
accepted for investigation by them or where it is considered a minor misconduct matter whether
it is suitable for local resolution, in which case it wil be referred back to the CSU.
7.2
Allegations of discrimination
7.2.1 Not every complaint that alleges discrimination or racism wil be for PSU to investigate.
PSU uses the ‘D x 3 + E’ formula, recommended by the Independent Police Complaints
Commission (IPCC), for considering whether complaints show possible discrimination. The
formula stands for:
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• Has there been a
Difference in treatment? i.e. was a customer subjected to different
treatment than another customer in the same circumstances
• Is there a
Difference in race? i.e. between the customer and subject(s) of the complaint
• Has the difference in treatment been to the
Detriment of the customer? i.e. if the customer
was treated differently was that a worse service or poorer treatment than others received
• Has there been an
Explanation for these differences available from any source? i.e. would
race appear to be the sole or major factor, or was there something about their
circumstances that would account for them being treated differently
7.2.2
If there is strong initial evidence available that the customer’s treatment can be
explained by factors other than race then the CSU may choose to refer the complaint for
local action rather than referring it to PSU. This type of case would likely include complaints
where no specific racist behaviour is referred to but the complainant states, for example, an
immigration decision against them such as refusal of Leave to Enter, or a provision of service in
itself, indicates
implicitly a racist attitude;
correct application of the formula test is important.
7.2.3
If there is any doubt whether an allegation is about discrimination the CSU must refer
the matter to PSU. PSU will then
make the determination as to whether it requires formal PSU-
led investigation. Where an allegation specifically states that an
explicitly racist statement was
made this wil always be sent to PSU for formal PSU-led investigation.
7.3 Investigation into allegations of criminal behaviour
7.3.1 When a complaint relates to an allegation of potentially criminal behaviour, for example an
individual alleged to have accepted payments or rewards related to their official activity, the
complaint should be referred by the CSU to PSU as with other serious misconduct complaints. In
corruption cases PSU wil consult SACU who wil advise whether a police investigation or internal
misconduct investigation would be appropriate in the circumstances of the case. SACU wil also
advise whether an investigation should continue under these investigation guidelines and take the
lead role in corruption cases.
7.3.2
In complaints relating to both criminal behaviour and inappropriate conduct the investigation
of the non-criminal aspect of the complaint may not always proceed where there is an outstanding
criminal enquiry. This is to ensure that the criminal enquiry is not prejudiced. It is important the
Police are notified of criminal allegations at the earliest opportunity to ensure that neither
investigation is prejudiced by the other.
7.4 Who will investigate the complaint?
7.4.1 Investigations into serious misconduct are undertaken by PSU or the Security and Anti-
Corruption Unit (SCAU). Al investigating officers within PSU are trained and have appropriate
level of knowledge, skil and experience to plan and conduct investigations; including those into
allegations made against officers who exercise police-like powers.
• PSU investigating officers are at least HEO grade or equivalent.
• The investigating officer wil have had no prior social acquaintance with the officer under
investigation
• They wil not have had any operational involvement in the circumstances surrounding the
complaint
• They are not obliged to answer questions from interviewees of their representatives about
their personal career history or experience.
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7.4.2
The role of PSU investigating officers is:
• To establish the facts of the complaint and provide conclusions as to whether, on
balance of probability, the evidence available substantiates the complaint
• To highlight any procedural shortcomings that may become apparent during the course
of the investigation
7.4.3 It is not the role of the investigating officer to decide what action should be taken as a result
of their investigation. See 7.9 below.
7.5
File management of serious misconduct cases
7.5.1 A file must be created for each serious misconduct complaint. These must be classified
as ‘Personal - Protect’ and be stored securely at all times. Where the information compiled
becomes oversize, it wil be necessary to request an additional file with a new IMG reference.
Al files relating to the same case should be held together and, in case they become separated,
all files should be marked with the IMG references of the files they are linked with. Al paperwork
related to the complaint must be kept on the file, including the original complaint, the
investigation report and a copy of the reply letter to the customer. PSU have the responsibility
for creating these files by raising a request with General Registry.
7.5.2 Completed files wil be forwarded to CCSPD’s Performance and Assurance Unit (PAU)
for potential audit. If there is an appeal subsequently, PSU wil request that PAU return the file
so that it can be made available for review by the PPO or IPCC. It is then returned to General
Registry for storage.
7.5.3 If a misconduct complaint file is raised in error and needs to be cancelled a full and
detailed minute must be written and kept on the file to explain why the file is being cancelled.
(These files are retained in the General Registry store) For example:
• A complaint mistakenly classified as a misconduct complaint that should be dealt with as
a service complaint – the minute should state that this is the reason for the cancellation
request, why it is being dealt with as a service complaint, who has authorised the
reclassification and give the details of the file the service complaint wil be kept on
• A file is raised and then it is realised that a file already exists for the complaint – the
minute should state this reason and give details of the file that has already been raised
7.5.4 A misconduct complaint file cannot be destroyed without the authorisation of PAU. If the
CSU or PSU thinks a file should be destroyed they must contact PAU for advice. If a decision is
made to go ahead with the destruction of the file the requestor must complete a pro-forma to
send to General Registry. The pro-formas must be requested from General Registry and when
complete sent to PAU to authorise.
7.6
The investigation – preparation
7.6.1 PSU wil draw up the terms of reference for investigating the complaint; in cases where it is
appropriate this wil be done in consultation with the Independent Police Complaints Commission
(IPCC). PSU wil appoint an investigating officer to undertake the investigation. In IPCC cases
that have a supervised or managed mode of investigation the IPCC must approve the proposed
investigation officer.
7.6.2 The investigation should be proportionate to the matter under investigation. There wil be
some cases where the facts are not in dispute and others where it is an issue of inference. In the
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latter instance the amount of investigation, including questioning of all parties, wil be greater in
order to establish on balance what has occurred.
7.6.2 The investigating officer should:
• Compile an investigation plan clearly showing how the investigation wil proceed,
including who should be interviewed, a timeframe for interviews and the compilation of
the report so that the investigation can be completed within the set timescale of 12
weeks.
• If the investigation exceeds, or is expected to exceed, 12 weeks PSU wil provide the
relevant CSU with updates on the progress of the investigation and the CSU should in
turn keep the relevant parties aware of progress. PSU wil also inform the customer if the
investigation has or is expected to exceed 12 weeks, similarly they wil provide regular
updates on the progress of the investigation.
7.6.3 It is essential that, wherever possible, the investigation is undertaken within this timeframe,
or sooner, while memories of events are stil fresh in the minds of those interviewed and to avoid
any subsequent complaint about delay in the process.
7.6.4 The investigating officer wil need to consider the information contained in the complaint to
decide who to interview to ensure that the full facts can be established. The subject of the
complaint and the customer should always be interviewed. There may however be reasons why
this is not practical (for example the customer is abroad) but in these situations alternatives such
as telephone interviews should be considered. If the investigating officer decides not to interview
certain individuals pertinent to the complaint they should provide reasons for this in their report.
7.6.5 Consideration should also be given as to whether there are files, electronic records or
papers relevant to the investigation that are required and arrangements made to obtain them.
These may include, but are not limited to, completed IS forms, notebook entries or witness
statements; electronic evidence e.g. CID records, e-mails from POISE, text messages on
Agency-issued mobile phones; and, CCTV, including from third parties. The PSU investigator
wil obtain and preserve all such evidence as it appears to them is relevant and available. Al
information wil be obtained, stored and/or shared or disclosed in a manner consistent with
internal guidelines and with relevant legislation e.g. the Data Protection Act 1998.
7.6.6 When deciding which people to interview or obtain evidence from due consideration wil be
given to any witnesses put forward by either party.
7.7
The investigation - communication
7.7.1 It is essential that all parties involved with the investigation disciplinary process are kept
informed about how matters are proceeding. The key communications during an investigation
are as follows;
Notification Letters
7.7.2 PSU wil send an acknowledgement letter to the customer within 2 days of receipt of the
complaint at PSU. The acknowledgement letter also informs the customer that they have 7 days
in which to provide any further relevant information for consideration.
7.7.2 Once the full details of the complaint have been established the issues being investigated
should be put in writing to the subject of the complaint. The notification letter should also state
that the officer may have committed a criminal offence or behaved in a manner which would
26
justify the bringing of disciplinary proceedings. Any information available at that stage about the
allegation should be provided along with the notification letter; this would usually be a copy of
the complaint letter, an excerpt from it, or a summary of its contents. In some instances
complaints/allegations are made against a specific team and it wil not be clear which member of
the team is the actual subject of the complaint. In these cases all the allegations must be referred
to during the interviews so that those involved have the opportunity to respond to all the
allegations
7.7.3 Where the complaint is about a contractor within Detention Services a copy of the
complaint letter wil have been sent to the relevant contractor’s Complaints Co-ordinator by the
Detention Complaints Section to forward to the contracted staff. It is the responsibility of
Detention Services and the contractor to consider whether or not the staff against which the
complaint has been made should have their accreditation to work with detainees’ suspended.
7.7.4 In non-Detention Service cases PSU wil write to the relevant Assistant Director (AD) to
inform them of the complaint received and the staff members it concerns (if identified at that
stage). It is the AD’s responsibility to inform the relevant line managers within their command
and to consider, in liaison with HR Business Partner or Advisor, whether to suspend any
member of staff pending further enquiries. The PSU wil send an initial letter informing the staff
member of the complaint as soon as possible.
Invitations to interview
7.7.5 Once the allegation has been set out in writing interviews wil be arranged with the
customer(s), the subject(s) of the complaint and any witnesses within an agreed timescale. If the
subject(s) of the complaint so wishes they can provide a written response to the allegations that
can serve as a basis for the interview. However, the investigator wil inevitably ask additional
questions during the interview until they are satisfied that all relevant information has been
obtained.
7.7.6 If the invitation is to a UK Border Agency member of staff the letter should give at least
five days notice and advise them of their right to be accompanied by a trade union
representative or workplace colleague.
Final report and reply
7.7.7 Once the investigation has been completed, the complainant wil be sent a reply letter
explaining fully the findings of the investigation into each aspect of their complaint. It wil also
set out any relevant appeal procedures e.g. to the Independent Police Complaints Commission
(IPCC).
7.7.8 A copy of the full investigation report wil be provided to the relevant line management.
The line management, in liaison with the relevant HR Advisor or Business Partner, wil
determine what, if any, disciplinary action to take. It is for the line management to issue a copy
of the report to the staff member who was the subject of the complaint. NB: If the investigation is
an IPCC ‘local’ or ‘supervised’ investigation, the complainant has rights of appeal against
disciplinary action not being recommended and/or taken. Therefore, when the line management
has made a decision regarding the taking of disciplinary action it wil inform PSU. In turn, PSU
wil inform the complainant of that decision in writing. A disciplinary hearing should not be
undertaken until either 28 days have elapsed and the complainant has not appealed, or, the
IPCC has made a decision on the complainant’s appeal.
Update letters
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7.7.9 Although it is the intention to complete all investigations within 12 weeks this wil not
always be possible. Where a case is delayed beyond 12 weeks all parties should be informed in
writing of progress and, if possible, a revised timescale for completion, at least every 4 weeks.
(In IPCC investigations all parties wil also be updated in writing at least every 4 weeks from the
outset of the investigation.)
7.8 The investigation process – interviews and evidence gathering
7.8.1 The purpose of the interview is to establish the facts of the case. Al aspects of the
complaint and any corroborative evidence must be put to the subject(s) of the complaint during
the course of the interview and they should be given every opportunity to respond to each
individual allegation. If there are allegations against more than one officer they should be
interviewed separately. The Investigating Officer may choose to disclose other evidence available
to them at interview. This wil be done in line with the Disclosure guidance at Section 7.10.
7.8.2 Ideally witnesses should then be interviewed either face or face or over the telephone,
depending on the extent of the information sought, with due consideration given to any witnesses
put forward by either party. If it is not practicable to interview the witness the investigating officer
may require a written statement instead.
7.8.3 Any interviewee should be asked if they are fit and well enough to be interviewed before
the interview is begun. Interviews themselves should not last longer than an hour and a half
without a break. After an agreed interval the interview can then recommence. The investigator
should also allow other reasonable requests for breaks e.g. to allow private consultation
between the interviewee and their representative.
7.8.4 It is important that an accurate record of the information provided at interview by
customers, subject(s) of complaint and witnesses is produced. How the information is recorded
wil be decided by the investigating officer in advance. The investigating officer’s decision is final
and must be co-operated with. In the majority of cases interviews wil be recorded so that a full
objective record of the interview is available for reference. The recording wil be used to prepare
either a full verbatim transcript, interview summary or a statement. The interviewee wil be
provided with a copy of the recording and a draft copy of the transcript or statement which they
wil be asked to sign off, with amendments if necessary.
7.8.5 If it is not possible for the interview to be recorded, the investigating officer or a person
appointed by the investigating officer, wil take a written note of the interview. The notes should be
provided to the interviewee at the end of the interview for them to confirm that they are an
accurate record. The notes wil then be used to draft a statement which wil again be provided to
the interviewee to sign off as an accurate summary.
7.8.6 The investigating officer must remain objective and act in the interests of natural justice and
fairness and should bear in mind that those interviewed are likely to be apprehensive. Equal
consideration should be given to all accounts. Assumptions and conjecture should be avoided
and an officer’s previous conduct or a customer’s immigration history should not be taken into
account unless it is fully justified in having an important bearing on the case.
7.8.7 Al staff members interviewed in connection with the complaint wil be expected to give the
investigating officer their full co-operation and be open and honest in providing their account of
events. Any attempt to obstruct the investigation process by them or their representative could
lead to the consideration of disciplinary action by line management. This also applies if at any
time during the investigation it becomes apparent to, or is reported to, the investigating officer that
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there has been an attempt to intimidate or interfere with witnesses. If this occurs it should be
reported to the CSU who should refer the matter to the individual’s line manager. The
investigating officer should also ensure there has been no breach of confidentiality or collusion
between the subject(s) of the complaint and witnesses. If any breach of confidentiality or collusion
is suspected this should be referred to in the investigating officer’s report.
7.8.8 The investigating officer should explain to the subject(s) of the complaint that they can be
accompanied by a trade union representative or workplace colleague if they so wish. The role of
the representative is to provide support, ensure the officer is aware of procedures and is treated
fairly. They are not there to answer questions on the officer’s behalf or behave in a way that
prevents the investigating officer from establishing the information required. Details of the rights to
be accompanied in certain circumstances are set out in the
Staff Handbook Chapter 14.
7.9 The Investigating officer’s report
7.9.1 The investigating officer should submit a full report to the CSU on completion of their
enquiries including the statements obtained. The report must set out the following:
• The terms of reference for the investigation
• Details of evidence obtained and witnesses interviewed (with reasons why not if
appropriate) and observations where appropriate on the relative credibility of the evidence
• A summary, consideration and balancing of the evidence addressing each point of the
complaint objectively and an assessment of the extent to which they are justified
• If the issue turns solely on the credibility of the parties involved this should be made clear
with comment made as to why the account of one party is given greater credence than the
other
• Whether any local procedures or instructions might need to be changed or modified as a
result of the conclusions reached
• Whether there is any suspected breach of confidentiality or collusion
• A conclusion based on the balance of probability of whether the complaint has been
substantiated or not
• Details of any recommendations made
7.9.2 The investigating office wil also state whether they would expect a disciplinary hearing to
be held for the purpose of considering a disciplinary sanction. The line manager, in consultation
with HR wil decide to hold a disciplinary hearing and what sanctions to consider. See section
7.11 below.
7.10 The investigation process – Disclosure of evidence
7.10.1 It is in the very nature of investigations that more evidence becomes available to the
investigating officer during the course of an investigation than is available at the outset when
only a complaint letter or form has been received.
7.10.2 Prior to being interviewed the subject of the complaint should have been provided with
sufficient evidence to al ow them to make representations to the investigating officer. In essence
this means that they wil have been provided with details of the circumstances of the matter
complained of e.g. time, date, location, persons involved; and the actions, conduct or behaviour
which have been alleged.
7.10.3 Beyond that, it is for the investigating officer to determine at what stage any further
evidence should be provided to relevant parties. The investigating officer wil consider, for
example, whether disclosure of certain information before an interview may lead to the
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contamination of the evidence of the interviewee or have other adverse effects to the
investigation.
7.10.4 The overriding obligation is that all allegations and corroborative evidence must be put to
the subject of the complaint at some point during the investigation process and for the subject of
the complaint to have had the opportunity to make representations in response.
7.10.5 Al the evidence available to the investigating officer and how it has been considered in
coming to a conclusion about the alleged misconduct wil be included in the Investigation
Report. A copy of the report wil be provided to the subject of the complaint by their line
management as soon as possible and always prior to any disciplinary hearing.
7.11 The outcome of the investigation
7.11.1 The CSU should ensure that all aspects of the allegation(s) set out in the terms of
reference have been properly addressed.
7.11.2 If the CSU has any concerns they should refer the matter to the Head of the PSU.
7.11.3 Once the report is completed the PSU wil write to the customer advising them of the
investigation’s findings, unless the relevant Director has indicated that they wish to send the reply.
The letter should state if they have a right of appeal to the Prison and Probations Ombudsman
(PPO) or Independent Police Complaints Commission (IPCC) and include any relevant leaflets
for doing so.
7.11.4 PSU wil provide a copy of the investigation report to the CSU, who wil in turn notify the
relevant Assistant Director/HMI who wil have the responsibility for ensuring the relevant
managers and those subject to the complaint are informed of the outcome and the review
process.
7.11.5 In Detention Services cases, the completed report and a copy of the letter to the
complainant should be sent to the Detention Services CSU who wil be responsible for
disseminating them within Detention Services, including to the relevant contractors. Al findings
should also be shared by the Investigating Officers with the relevant line management of the
subject of the complaint, ordinarily Assistant Director for the operational office or UK Border
Agency Immigration Removal Centre (IRC) manager concerned.
7.11.6 The investigating officer’s report and witness statements and any other documents
gathered during the course of the investigation are management documents. These documents
contain personal information about individuals that would be disclosable under the Data
Protection Act (DPA). The information could also potentially be disclosable under Freedom of
Information (FOI). Requests for this information under DPA or FOI wil need to be considered on
a case by case basis in discussion with the Data Protection Unit, FOI team or the Information
Access Policy Team. See also section 8.4 and 8.5 of this guidance.
7.11.7 Additional papers (for example, copies from casework files) should not normally
accompany an investigation report unless the investigating officer considers it essential. In these
cases the relevant issues within such papers should be fully addressed within the body of the
report.
7.12 Possible action following an investigation
Disciplinary action
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7.12.1 When an allegation is substantiated and misconduct found to have taken place it wil be
the responsibility of the line manager to consider whether disciplinary action is appropriate in
consultation with the Human Resources Advisor. With regard to Detainee Custody Officers
(DCOs) employed by contractors, the matter of any disciplinary action is one for the contractor.
Any decision to revoke a DCOs accreditation is one for Detention Services Contract Monitors.
7.12.2 Under new IPCC regulations where a complaint has been referred to and overseen by
the IPCC it has the power to direct UKBA to hold a disciplinary hearing if it feels it to be
appropriate. It can not however direct the outcome of that hearing.
Other action
7.12.2 In cases where there are lessons to be learnt by those involved, whether or not the
complaint was found to be substantiated, local line management wil decide how to take this
forward and whether advice, guidance or further training is appropriate.
7.12.3 CCSPD reviews quarterly any recommendations made by PSU and identifies common
themes and ‘lessons learned’ for inclusion in a quarterly report to Directors.
7.13 Risk
management
7.13.1 Serious misconduct complaints can be anything from low to high risk with potential for
serious reputational damage to the Agency as well as potential legal action taken against us. A
risk assessment of each case wil need to be conducted. PSU should assess each misconduct
case for potential risk upon receipt of the case and upon completion of the investigation.
7.14 Learning
lessons
7.14.1 Every PSU report should be reviewed by the Director of the area the complaint is about
to review the lessons identified and the recommendations made by PSU. The report should be
reviewed as soon as possible after it is available.
7.14.2 The lessons learnt from serious misconduct investigations will range from looking at
individual line management through to the operational processes used by the Agency. It is
important for each unit to keep a detailed record of the lessons learnt from each investigation
and what action they have taken to prevent its re-occurrence.
7.15 Review
process
7.15.1 Unless the customer provides evidence as to why an investigation was flawed or the
conclusion unsound the Agency wil not review serious misconduct investigations. Where the
customer does provide sufficient grounds for reviewing a serious misconduct investigation these
must be raised with the Head of PSU.
7.15.2 The customer retains the right to take their complaint to the Parliamentary and Health
Service Ombudsman (PHSO) or, in the case of detainees, to the Prisons and Probation
Ombudsman (PPO) or where the complaint involved a UKBA officer with police-like powers the
Independent Police Complaints Commission (IPCC). See sections 3.8, 3.9 and section 9.
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Section 8
Special circumstances
8.1
Closing complaints before resolution
8.1.1 There are some circumstances in which complaints may be closed without a full
resolution. These are:
• Complaints where the customer has not provided enough information and it is not
possible to even begin an investigation into the complaint. In these cases the CSU or
NRO should write to the customer requesting more information. The case should be
marked as ‘Invalid’ on CMS. When the customer provides sufficient information to
investigate then a new complaint should be raised on CMS.
• Service complaints more than three months old where the customer has been removed
from the UK and the Agency is out of contact.
• Service or minor misconduct complaints more than twelve months old when the customer
hasn’t pursued since making the initial complaint.
• If the complaint is solely about the delay taken to make a decision then the complaint can
be closed when a decision is made on the case. The customer should be told, either in
the decision letter or by separate letter, that there complaint has been closed. If there are
other aspects to the complaint they must be separately addressed.
8.1.2 In these circumstances, except the last, a case can be marked as closed but not
resolved. A clear audit trail should be kept explaining why the complaint is not being pursued.
Where the Agency has closed a complaint before resolution it can be re-opened at the request
of the customer.
8.1.3 Serious misconduct cases should not be closed without an investigation even where
circumstances limit the type of investigation that can be made.
8.2
Action while a complaint is under investigation
8.2.1 The fact that a complaint has been made and is under investigation should not interfere
with the Agency’s consideration of the immigration or Customs aspects of a case. Removal or
excise seizure action, for example, should not be postponed pending the outcome of the
complaint unless it is likely that criminal charges may be brought and the customer required as a
witness. In cases of doubt the business area concerned should consult with the Professional
Standards Unit (PSU).
8.3
Complaints received in grounds of appeal
8.3.1 Complaints about the Agency’s service or the conduct of members of staff can be
contained in grounds of appeal. In such cases the fact that a complaint has been lodged should
not delay the appeal process; nor should it be assumed that the complaint would be dealt with as
part of those procedures. Preparation of the appeal statement should continue in the normal way,
with the following sentences being included:
"Included in the grounds of appeal was a complaint about the service provided by
/conduct of United Kingdom Border Agency staff. This is being dealt with separately
under the Agency's complaints procedure."
8.3.2 A copy of the Grounds of Appeal, together with copies of all other relevant
correspondence/minutes, and a note explaining the current situation, should be sent to the
relevant Customer Service Unit (CSU). The appeal should not be delayed and appeal statements
should be prepared and the appeals process adhered to in the normal way.
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8.3.3 The area dealing with the complaint wil liaise with the relevant Presenting Officers Unit
(POU)/Post Seizure Unit and ensure the complaint is investigated and a reply prepared to cover
the complaint aspect of the case.
8.3.4 Where the resolution of the complaint casts doubt upon the validity of the decision under
appeal it wil be for the business area and the POU/Post Seizure Unit to agree the appropriate
action. Cases of doubt should be discussed with the CSU.
8.4
The Data Protection Act 1998
8.4.1 A customer may refer to the Data Protection Act (DPA) and request details of personal
information held on paper or in computer records. Under the Act such requests have to be
processed within strict guidelines and within a time limit of 40 days from receipt of a properly
made request. (Requests must be made in writing and the customer must also pay a fee of £10.
There is no obligation to process any request for subject access until these two requirements have
been met.) The Agency faces legal action if this is not adhered to. Al such cases should be
brought to the immediate attention of:
Data Protection Unit
12th Floor East Wing,
Block B,
Whitgift Centre,
Croydon,
CR9 1AT
8.4.2 Request for access to such information should not be dealt with by any other section.
8.5
Freedom of Information Act 2000
8.5.1 The Freedom of Information (FOI) Act came into force on 1 January 2005. It provides the
public with a right of access to information held by all public authorities. Any request for such
information should be responded to within 20 working days, starting on the date the request is
received by the Agency.
8.5.2 A User’s Guide for dealing with FOI requests is available on Horizon. Enquiries can be
addressed to:
Central Freedom of Information Team
11th Floor Lunar House,
40 Wellesley Road
Croydon
CR9 2BY
8.6
Complaints mentioning legal action and County Court claims
8.6.1 Where the Agency receives a pre-action letter or any complaint that states the customer
has begun legal action you should consider what legal support is needed, if any. Answering
pre-action letters relating to run of the mil complaints wil likely need no legal support. Where
litigation is imminent, very likely or in train it wil be appropriate to instruct Treasury Solicitors to
represent the Agency in that litigation. Where a case is particularly high profile, complex or has
a wider knock on effect on policy, operations or practice it may also be appropriate to involve
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Legal Adviser's Branch (LAB). Before a reference to LAB is made you should consult with and
obtain the approval of your Head of Unit
8.6.2 Claims for compensation in the County Court are governed by the Civil Procedure Rules
and in particular the practice direction relating to pre-action conduct.
8.6.3 Before commencing proceedings for compensation against the Agency each party must
exchange sufficient information about the matter to;
• allow them to understand each other’s position and make informed decisions about
settlement and how to proceed, and
• must make appropriate attempts to resolve the matter without starting proceedings
8.6.4 It must be remembered that the obligation under the practice direction extends both
ways, namely that the Agency must engage with correspondence or any approach made before
proceedings are commenced i.e. it is important to respond to a pre-action letter
8.6.5 The court has the power to ask the parties to explain what steps have been taken to
resolve the issues before the case can proceed before the court and if the practice direction has
not been complied with the court can impose sanctions such as suspending the proceedings
until the practice direction is complied with or ordering the non-compliant party to pay the other
party’s costs in the court proceedings. The court however is required to act proportionately and
wil therefore only impose such sanctions where the effect of non-compliance justifies it.
8.6.6 The Agency cannot insist that a customer adhere to the requirements of the practice
direction as outlined above. The customer may be penalised by the court if they do not adhere
to it but they are not necessarily prohibited from bringing proceedings if they do not.
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Section 9
Complaints from the Parliamentary and Health Service
Ombudsman (PHSO)
9.1 Introduction
9.1.1 The Parliamentary and Health Service Ombudsman (PHSO) investigates complaints that
government departments, and a range of other public bodies in the UK, have acted improperly,
unfairly, or have provided a poor service.
9.1.2 The PHSO is independent of the Government and is not a civil servant. She is an officer of
the House of Commons, appointed by the Queen, and reports to Parliament. The PHSO has
statutory responsibilities and powers to report directly to Parliament.
9.1.3 In February 2009 the Ombudsman republished her ‘Principles of Good Administration’,
‘Principles of Good Complaint Handling’ and ‘Principles for Remedy’. These are broad statements
of what she considers public bodies should do and how to respond when things go wrong. The
same six principles apply to each of the three documents; they are:
• Getting it right
• Being customer focused
• Being open and accountable
• Acting fairly and proportionately
• Putting things right
• Seeking continuous improvement
For more information please see: www.ombudsman.org.uk
9.1.4 The PHSO’s underlying principle is to ensure that the service provider restores the
customer to the position they would have been in if maladministration had not occurred. This
may include financial redress and/or an apology. They may also recommend that procedural
changes are made to avoid similar problems happening again.
9.1.5 The PHSO's recommendations are not binding but there is an expectation that public
bodies wil abide by them. If the PHSO feels that the Agency has failed to remedy an injustice,
or is not satisfied with our response to their enquiry, the PHSO may draw the matter to the
attention of Parliament. From time to time the PHSO also reports specifically on individual
examples of maladministration.
9.2 Overview of PHSO complaints process
9.2.1 There is an expectation that individuals wil follow our internal complaints procedure before
they refer their complaint to the PHSO and that complaints should be lodged within 12 months of
the event which led to the complaint.
9.2.2 Complaints must be made through a Member of Parliament and cannot be made by
customers direct to the PHSO. It is the MP’s decision whether to refer a complaint to the PHSO
and the PHSO is not obliged to investigate every complaint that has been referred to her by an
MP.
9.2.3 If the PHSO decides to launch a full investigation into a complaint against the Agency it
wil send a summary of the complaint giving us the opportunity to comment and stating exactly
what further information is required.
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9.2.4 The PHSO has agreed to contact the Chief Executive directly about cases which appear
capable of swift resolution and/or raise key or systemic issues. In such cases PHSO wil email
the Chief Executive directly, copying in the Policy, Oversight and Best Practise Unit (POBU)
which in turn wil alert the relevant CSU. The Chief Executive’s office wil contact the relevant
business area directly, ask for a response to be prepared, and return the response to PHSO
within the agreed deadline.
9.2.5 The PHSO investigator can inspect UK Border Agency files and interview relevant officers
in person, either at PHSO or Agency offices. They may also conduct interviews by telephone.
When it has considered the information we have provided the PHSO will send a copy of her
draft report and findings, giving us further opportunity to comment on the facts and provisional
findings before the final report is issued.
9.2.6 The PHSO's report sets out whether it has found maladministration causing injustice and
whether that injustice has been remedied. If it has not it wil recommend what should be done to
put things right.
9.3 Premature complaints
9.3.1 The PHSO receives a number of complaints where customers have not received a
substantive response to their complaint from the Agency in accordance with our service
standards. In such cases the PHSO wil refer these complaints back to the Agency for resolution
rather than launching its own investigation.
9.4 Handling premature complaints
9.4.1 The PHSO wil email details of the complaint to POBU in line with existing procedures for
handling PHSO cases. POBU wil acknowledge and allocate the cases to the named contact in
the relevant business area copying in the grade 7 / Assistant Director of that business area and
the appropriate CSU within two working days of receipt.
9.4.2 The business areas should deal with the complaint in accordance with the standards set
out in sections 4, 5, 6 and 7 of this guidance and a copy of the substantive response should be
emailed to the PHSO and CCSPD.
9.4.3 Where we do not have a record of the complaint being received the CSU should treat the
referral as a new complaint indicating that the PHSO has referred the complaint to the Agency.
9.4.4 Where a substantive response has already been sent (but that the customer has not
received it) the part of the business which dealt with the complaint originally should send the
customer a copy (copying it to the PHSO and POBU).
9.4.5 If there are next steps arising from the premature complaint such as an apology letter or
an undertaking to make a decision on the case POBU wil arrange with the business area for it
to be done within an agreed timescale. The business area should provide evidence to POBU
that any next steps have been completed.
9.5 Requests for further information
9.5.1 The PHSO sends the Agency requests for further information in cases where she is
deciding whether to launch a full investigation into a complaint. In some cases the information
we supply enables the PHSO to conclude that a full investigation is not necessary. Where
36
appropriate these requests also give the Agency the opportunity to resolve matters before the
PHSO launches a full investigation into the complaint.
9.6 Handling requests for further information
9.6.1 The PHSO wil email the request for information to POBU in line with existing procedures
for handling PHSO cases. POBU wil acknowledge and allocate the request to the relevant
contact within the business area within two working days of receipt copying in the Grade 7 /
Assistant Director of the business area and the appropriate CSU.
9.6.2 The business area is responsible for returning the requested information to POBU within 5
working days.
9.6.3 POBU wil draft a response and reply to the PHSO within two weeks of the request being
received from the PHSO.
9.6.4 If there are next steps arsing from the request for further information such as an apology
letter or an undertaking to make a decision on a case, POBU wil arrange with the business
area for it to be done within an agreed timescale. The business area should provide evidence to
POBU that any next steps have been completed
9.7 Full investigations
9.7.1 Full investigations tend to have three stages in the process:
• Initial enquiry
• Draft report
• Final report
In some cases there might also be some further enquiries following the Agency’s response
to the initial enquiry.
9.7.2 If the PHSO decides to investigate a complaint against the Agency an investigator will
email POBU with an enquiry summarising the complaint and asking the Agency to provide a
response. The PHSO usually asks us to respond to the enquiry within three weeks.
9.8 Handling full investigations
9.8.1 POBU wil acknowledge and allocate the case to the contact within the relevant business
area copying in the Grade 7 / Assistant Director of the business area and the appropriate CSU
within two working days of receipt.
9.8.2 The business area should draft a reply to the Ombudsman’s enquiry ensuring that the
draft reply covers the following:
•
Chronology:
The PHSO usually asks for a full chronology of the customer’s immigration history and
the Agency’s dealings with them. Even if a chronology has not been requested it is good
practice to provide one as it wil enable us to put the complaint in context, establish why
certain actions were taken, and reach a balanced conclusion about our role in the events.
•
Answer all questions fully:
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Be objective even if it does not reflect well on the Agency. In some cases we wil not be
able to fully explain why an error was made or why a particular course of action was
taken (for example when a file contains inadequate or incomplete minutes). If we are
unable to fully explain our actions we should be honest about this.
•
Identify whether correct procedures have been followed:
It is good practice to set our actions against the policies or procedures that were in place
at the time. If we argue that we took a particular course of action because of a policy that
was in place at the time we should supply the PHSO with a copy of that policy. We
should always explain whether we were correct to take the action we did.
•
Explain delays:
We should provide full explanations of any delays that have occurred in cases. If cases
have been caught up in any backlogs we should provide full explanation of when these
backlogs formed; how many cases are caught up in the backlog; what steps are being
taken or have been taken to address the situation; what has been done to inform
applicants of the situation (i.e. notices put on website, IEB being informed so they can
inform applicants when contacted, informing applicants when they write in); and if there
are any timescales in place for the backlog to be cleared.
•
Be consistent:
Responses to the PHSO should be consistent. Many PHSO complaints involve the same
issues, such as delay. We should ensure that lines taken in previous cases relating to
similar or the same issues are stil relevant.
•
Remedies:
o If we accept that a customer has suffered as a result of our maladministration we
should try to offer a remedy in our response. (For example if a customer has been
unable to claim benefits because we failed to serve documents confirming a grant of
indefinite leave to remain (ILR) we should contact the Department for Work and
Pensions and consider making a payment for backdated benefits.)
o Consider if a consolatory payment is appropriate even if the PHSO hasn’t specifically
asked for it. Guidance on consolatory payments can be found in section 11, in
particular section 11.5.
o Was the correct decision on the case made? (For example was someone granted
discretionary leave but actually, upon review, should have been granted ILR.)
9.8.3 The business area should return the draft reply and the customer’s files to POBU within
two weeks of the case being received by the Agency. POBU wil quality assure the draft and
send the final reply to the PHSO.
9.8.4 When the PHSO has considered our response they may have some further questions. If
this is the case, the investigator wil email the questions to POBU and, wil usually, specify when
a response is required. POBU wil acknowledge receipt and forward the questions to the
relevant business area within two working days and agree a deadline for when the answers
need to be provided. The business area is responsible for returning the response to POBU
within the agreed deadline who will submit it to the PHSO.
9.8.5 When PHSO has considered the full response it wil send POBU a draft report of its
findings by email and ask for comments. The Agency is usually asked to provide comments
within two weeks. POBU will acknowledge receipt of the report and forward it to the relevant
business area within two working days of receipt agreeing a timeframe for comments to be
38
returned, usually within 1 week. The business area is responsible for returning the comments to
POBU, within the agreed deadline, who wil submit them to the PHSO.
9.8.6 The business area should pay particular attention to the following:
• That the PHSO has interpreted the UK Border Agency’s response correctly
• That the dates referred to in the report are accurate
• That any legislation, immigration rules, casework guidance, Immigration Directorate
Instructions referred to in the report have been correctly interpreted
• That any recommendations made by the PHSO i.e. an apology letter, redress issues,
reviewing decisions, reviewing guidance can be dealt with within the timescale set down
by the PHSO. If not an explanation wil need to be provided and a new timescale
suggested.
9.8.7 When the PHSO has considered the comments it wil send POBU a copy of its final report
by email. POBU wil acknowledge receipt of the report and forward it to the relevant business
area within two working days of receipt and copy to the appropriate CSU.
9.8.8 If the Agency accepts that the customer suffered an injustice arising from
maladministration POBU wil liaise with the business area to write to the customer. The letter
should identify any errors, offer an apology, and, where appropriate, offer the customer the
agreed financial redress. In cases where financial redress is offered the customer should be
asked to accept the offer in writing. When this written confirmation is received POBU will liaise
with the business area or relevant CSU to ensure payment is made.
9.8.9 POBU will be responsible for ensuring that all recommendations made by the PHSO in
their final reports are taken forward and wil provide evidence to the PHSO that the
recommendations have been complied with.
9.9 Legacy referrals
9.9.1 The Case Resolution Directorate (CRD) exists to resolve the Agency’s unresolved asylum
applications made before 5 March 2007. It has been estimated that there were between
400,000 to 450,000 electronic and paper records; many of which are duplicates or errors. The
aim is to conclude all the incomplete cases by summer 2011.
9.9.2 Priority is given to cases that may pose a risk to the public, those that can be easily
removed or given status, and those receiving public support.
9.9.3 The PHSO receive a number of complaints about cases that are caught up within this area
and agreed a process for referring these complaints directly to CRD to deal with under their
priorities within an 8 week timescale.
9.9.4 The PHSO wil email the CRD CSU directly asking if a particular case is suitable for
referral under the agreement. CRD CSU wil inform the PHSO if the case is suitable for referral.
9.9.5 If the case is suitable the PHSO wil email the referral directly to POBU who will
acknowledge receipt and refer the case to the relevant Case Resolution Team (CRT).
9.9.6 The CRT should write to the applicant within 20 working days. A copy of the letter and
background note should be sent to POBU who wil forward them onto the PHSO.
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9.9.7 If the CRT decides that the application falls under one of their priorities then the
application should be decided within 8 weeks.
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Section 10
Unreasonably persistent customers and unacceptable behaviour
10.1.1 The UK Border Agency is committed to dealing with all complaints made by or on behalf
of our customers fully, impartially and quickly and expects customers to work with us to help
resolve their complaints.
10.1.2 There are some situations where a customer’s behaviour or actions are unacceptable to
the Agency; these wil fall into two main categories:
• Behaviour that is threatening, abusive or offensive. The Agency does not expect staff to
tolerate this behaviour from customers. This principle extends to written as well as
verbal communications
• Customers who because of the frequency of their contact with the Agency may hinder
effective consideration of their own or other people’s complaints. These are termed
‘unreasonably persistent customers’
10.1.3 When a customer’s behaviour is considered unacceptable they wil be told why their
behaviour is unacceptable and they will be asked to change it. If the unacceptable behaviour
continues action wil be taken to restrict the customer’s contact with the Agency.
10.1.4 Where behaviour is so extreme that it appears to threaten the immediate safety and
welfare of Agency staff, consideration wil be given to other options, which may include, for
example, reporting the matter to the Police or taking legal action. In such cases prior warning of
that action wil be given to the customer.
10.1.5 The decision to restrict access is taken by the Nominated Responsible Owner (NRO), in
consultation with the Customer Service Unit (CSU) as appropriate. Any restrictions imposed
should be appropriate and proportionate to the circumstances. The options to be considered wil
be:
• Requesting contact in a particular form (e.g. letters, emails)
• Requiring contact to take place with a named officer only
• Restricting telephone calls to specified days and times
• Asking the customer to enter into an agreement about their conduct and/or future
contacts with the Agency.
10.1.6 In all cases it wil be explained to the customer in writing by the NRO why their behaviour
is considered unacceptable, what action wil be taken, and the duration of that action. They will
also be informed they can write to the CSU challenging the decision should they disagree.
10.1.7 Where a customer continues to behave in a way which is unacceptable, it may be
decided to terminate contact with that customer and discontinue any investigation into their
complaint.
10.1.8 Where a customer whose case is closed persists in communicating with the Agency a
decision may be taken to terminate contact with that customer. In such cases the Agency will
read all new correspondence from that customer but unless there is fresh evidence which
affects the decision on the complaint the correspondence wil simply be acknowledged or wil be
placed on file with no acknowledgement. New complaints from those who come under this
policy wil be treated, and decisions made, based on their merits.
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Section 11
Compensation guidance
11.1 Introduction
11.1.1 Customer Service Units (CSUs) are responsible for assessing compensation claims and
authorising payment where appropriate. The same considerations apply whether the claim is
made by the customer directly, through representatives or by the Parliamentary and Health
Service Ombudsman (PHSO).
11.1.2 Compensation should only be considered in cases arising from claims alleging
maladministration or where maladministration has been identified by the Agency. It applies to
both actual financial (section 11.4) and non financial loss (section 11.5). Where it is clear that a
customer has suffered financial loss as a result of our maladministration then re-imbursement of
their unnecessarily incurred costs should be considered even if the customer does not directly
request it.
11.1.3 Claims for compensation can also arise as a result of damage caused by the Agency in
carrying out its work. HMRC have separate compensation guidelines on the damage to or
destruction of vehicles and loss of items in seized vehicles are in Annex A to this guidance.
Claims for damage to property as a result of forced entry to premises can be found at:
http://horizon/IND/Directorates/OPERATIONS/Resources/Word/DEC/MoEGuideBSU.doc
11.1.4 Al payments of compensation need to be considered in line with Managing Public Money
standards (October 2007) and Finance Notice 3/1996.
11.1.5 The threshold for the Home Office delegated financial authority from Treasury for
compensation payments stands at £50,000. This authority has been delegated in full to the UK
Border Agency Chief Executive who has sub-delegated this in full to Senior Directors and
Regional Directors. This authority may be further sub-delegated to Directors with a threshold of
up to £20,000.
11.1.6 Specific written approval from the Treasury must be received for all proposals to make a
compensation payment above £50,000.
11.1.7 When we decide compensation should be paid a letter informing the customer of the
amount should be sent to them asking them to formally accept the offer. Once the customer
accepts the offer the amount offered should be paid within a reasonable time.
11.2 Maladministration
11.2.1 There is no definition of maladministration in law but it is generally agreed to be a lack of
care, judgement or honesty in the management of something.
11.2.2 With regard to claims of compensation the Agency would consider the following to be
maladministration. These are not exhaustive and some situations may need to be taken on their
own merits.
Losing documents 11.2.3 These can include the loss of documents such as passports, driving licences, marriage
certificates, birth certificates, college certificates etc that have been submitted to the Agency
and have been lost or misplaced whilst in the Agency’s care.
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11.2.4 The Agency sending out a customer’s documents to an incorrect address and Royal Mail
losing the package. Whilst Royal Mail has lost the package the Agency incorrectly addressed
the package so the initial maladministration was the Agency’s fault. Further guidance relating to
Royal Mail losses can be found at section 11.4.
Defacing/invalidating documents
11.2.5 Examples of actions can include hole punching a national passport thereby invalidating it,
or marking/defacing a document that in any way leads to it being invalidated.
Delay in taking action 11.2.6 The Agency do not pay compensation for costs incurred in pure delay, see section
11.2.12 and 11.12.13.
11.2.7 However the Agency wil consider costs arising from delays if other aspects of
maladministration have occurred; examples can include failure to take action on repeated
requests from applicants regarding the return of a passport which then leads to financial loss, or
a decision being made on an application and failing to serve that decision which then leads to
financial losses such as loss of access to benefits or being unable to take up an offer of
employment or employment being terminated.
Taking incorrect action
11.2.8
An example of failing to take correct action could be endorsing a passport with the wrong
conditions resulting in a person being unable to take up a work placement.
Failure to respond to correspondence
11.2.9
An example of failing to respond to correspondence can be where a customer has
written to the Agency on a number of occasions, or over a period of time regarding action that
they needed the Agency to take such as returning a passport, confirmation of right to work
which has then led to the customer incurring financial cost.
11.2.10
Failure to respond to correspondence can also be considered under non-financial
loss where the Agency hasn’t responded to correspondence which could cause the customer
anxiety and inconvenience (see section 11.5 on non-financial loss for further guidance).
Giving incorrect advice
11.2.11
An example of giving incorrect advice would be the customer making an
application too early or submitting an incorrect application based on incorrect advice given by
the Agency.
What the Agency DOES NOT class as maladministration
Delays
11.2.12
Targets, other than mandatory ones, are taken as indicators of a satisfactory or
unsatisfactory performance rather than a firm commitment that a specific performance wil be
achieved in every individual case. Delays that have occurred due to operational constraints and
limited resources i.e. where a backlog of cases have incurred such as with the Liverpool
Charged casework cases, or the CRD Legacy cases are not classed by the Agency as
maladministration.
11.2.13
Forms of redress such as apology or remedial action may be called for when the
complaint is about delay but financial compensation would only be appropriate in exceptional
circumstances
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Policy changes/cases put on hold
11.2.14
The Agency do not count delays as maladministration where there has been a
change in policy on how to deal with certain applications or cases have been put on hold
because of a test case. Examples of this include the Iraqi judgement cases, Certificate of
Approval cases etc.
11.3 Exceptional
circumstances
11.3.1
There may be circumstances when no maladministration on the part of the Agency
has occurred but a situation has occurred which has led to a customer incurring expenses that
they would not otherwise have incurred. An example of this is the flooding of a number of
Agency buildings in Sheffield during 2007 which resulted in a number of passports and other
documents being water damaged.
11.3.2
The Agency did not accept liability for this situation as it was not as a result of
maladministration however it was decided to exceptionally offer redress to customers whose
documents were affected by this natural disaster.
11.3.3
A further example could be when computer systems have gone down over a
number of days and customers who may have attended one of the Public Enquiry Office’s incur
additional expenses to make/travel to a subsequent appointment.
11.3.4
In cases where the impact has been national rather than regional (i.e. a computer
system outage that affects the whole country) CSUs should liaise with CCSPD to ensure there
is a unified approach to compensation.
11.4 Actual financial loss
11.4.1
Actual financial loss applies to cases where maladministration has directly caused
the customer to incur additional expenditure that would not have been incurred otherwise.
11.4.2
Most cases are likely to fall into three broad categories:
• Where the customer has lost in whole or in part an entitlement to a governement grant,
subsidy, benefit payment, allowance or other payment;
• Where the customer has been put to additional expense;
• Where payment of a grant or benefit etc has been delayed and compensation has been
sought on account of the delay.
11.4.3
The Agency pays compensation for financial loss for reasonable costs that have
been necessarily incurred. The aim is to restore the customer to the position he or she would
have enjoyed had the maladministration not occurred. Where claims are made for costs
occurred in foreign currencies the exchange rate at the time of expenditure should be used to
determine the appropriate level of compensation. A history record of currency exchange rates
can be found at www.x-rates.com.
11.4.4
Financial remedies should not, however, allow recipients to gain a financial
advantage compared to what would have happened with no service failure.
11.4.5
The Agency does not pay interest on compensation claims. Interest is only
considered on payments where it has been recommended by the PHSO.
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11.4.6
The following are typical examples of financial loss. These are not exhaustive and
are used to demonstrate general principles in deciding the appropriate levels of compensation
for financial loss.
Passports
11.4.7
The majority of compensation claims received by the Agency concern lost or
misplaced passports. The cost of a passport can vary from less than £50 to over £800
depending on the issuing country.
11.4.8
In addition to compensation for a lost passport customers wil often seek redress
for:
• Travel costs to their Embassy or High Commission in order to obtain a new document
(this may include rail, road and sometimes air fares)
• Passport photographs
• Signed affidavits (confirming their identity)
• Loss of earnings (on the grounds that they had to visit their Embassy or High
Commission when they could have been at work)
11.4.9
If the Agency accepts that a passport has been lost whilst in our care the CSU
should consider all costs associated with replacing it. Customers are required to supply
evidence to support their claim in this respect. This includes:
• Receipt for the cost of the passport from the Embassy or High Commission
• Proof of travel costs (train, coach and airline tickets and receipts for petrol costs)
• Receipts from solicitors in respect of affidavits
• Receipts for passport photographs if they are available
11.4.10
If a customer is unable to provide a receipt for the cost of a passport a photocopy
of the pages of the new passport showing the identity details and date of issue should be
requested.
11.4.11
When the evidence has been received the CSU should check the cost of the
passport with the relevant Embassy or High Commission. This can be done via the websites of
the various Embassies. High Commissions can be contacted for this information via email, fax,
letter or telephone. Contact details for the various Embassies and High Commissions can be
found at the Foreign and Commonwealth website. Staff that have access to the Knowledge
Base can find the information there.
11.4.12
The CSU should always check the expiry date of a passport that has been lost or
misplaced. In general, if a passport expires whilst the Agency is holding it in connection with an
application, the applicant is responsible for its renewal. Some Embassies and High
Commissions charge the same amount to renew a passport as they do to replace one.
Therefore, if the Agency loses a passport that expired, and the renewal fee is the same as the
replacement fee the CSU should not offer compensation. If the replacement fee is higher than
the renewal fee the CSU should pay the difference.
Travel costs
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11.4.13
In most cases customers wil provide evidence of travel costs such as receipts or
the actual travel tickets. If a customer is unable to provide proof of travel costs but there is
evidence that they visited their Embassy or High Commission, the CSU should consider offering
compensation.
Train costs
11.4.14
Enquiries about the cost of train fares by contacting National Rail on 08457
484950 or
through National Rail Enquiries.
Petrol costs
11.4.15
Some customers choose to travel by car and submit receipts for their petrol costs
however the CSU should only pay for the petrol needed to make the essential journeys in
relation to the maladministration i.e. replacing their passport. The CSU should work out how
many miles the customer has had to cover. This can be done by using the AA Route Planner.
11.4.16
The following is an example of the assessment that should be carried out when
assessing a claim based on a journey of 300 miles with a receipt showing the cost of petrol per
litre at £0.859p):
• 30 miles = 1 gallon. 1 gallon = £4
• 1 gallon = 4.55 litres
• 300 divided by 30 (miles) = 10
• 4.55 litres x 10 (gallons) = 45.5 litres
• 45.5 litres x £0.859p (or price shown on the receipt per litre) = £39.08
The customer should be offered
£39.08
Taxi fares
11.4.17
Some customers may claim the cost of travelling by taxi. In general the Agency
wil not meet the cost of taxi fares. However, the CSU should consider meeting these costs in
exceptional circumstances. For example,
• Where the customer is disabled
• Where the customer is heavily pregnant or il
• Where there was no public transport alternative at the time the customer needed to travel
Evidence of this must be provided, including appropriate medical evidence.
Other valuable documents
11.4.18
The Agency wil consider offering compensation to replace other lost or misplaced
documents. This includes:
• Marriage certificates
• Birth certificates
• Police Registration certificates
• Exam certificates i.e. diplomas, degrees etc.
11.4.19
The CSU must request receipts before offering compensation to cover the costs of
replacing these documents. If the customer cannot provide receipts the CSU should request
copies of the documents and information about where they were obtained from. If necessary,
the CSU can then contact the provider to confirm authenticity.
Losses by Royal Mail
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11.4.20 The Agency despatches documents by Recorded Delivery or Secure Mail System
(SMS) unless applicants provide a pre-paid self-addressed Special Delivery envelope.
11.4.21 The Agency wil only consider offering compensation if correspondence was incorrectly
addressed and has been either subsequently lost by Royal Mail or delivered to the incorrect
address by Royal Mail and subsequently became lost. If the Agency correctly addressed the
package the CSU should not offer compensation.
11.4.22 Royal Mail wil usually compensate applicants for a lost package even if the Agency has
addressed it incorrectly. However, it wil not offer any more than £39. In these cases the CSU
should pay the excess.
Case Study 1
The Agency despatches Mr X’s status papers and his family’s passports by recorded delivery
to the address recorded on the Case information Database (CID). Mr X enquires about his
application and is informed that the decision letters and documents have been despatched
and that he should check with Royal Mail.
Mr X establishes that the package had not arrived. The Agency discovers that the package
was incorrectly addressed. Mr X had informed us of a recent change of address but this had
not been recorded on CID. Royal Mail subsequently pays Mr X £39 in compensation.
However, the total cost of the passports was £336 plus a further £16 for passport
photographs.
The CSU should pay the difference between the total cost and the £39 offered by the Royal
Mail (£352 - £39 = £313).
Mr X should be offered £313
Case Study 2
The Agency despatches Miss Y’s status papers and passport by recorded delivery to the
address recorded on the Case Information Database (CID). Miss Y enquiries about her
application and is informed that the decision letter and her documents have been despatched
and that she should check with Royal Mail.
Miss Y establishes that the package has not arrived. The Agency issues a P58, along with
proof of the Royal Mail collecting the package. Miss Y makes a compensation claim to Royal
Mail who subsequently offered £39 in compensation.
Unfortunately the £39 offered by Royal Mail does not cover her costs and she puts in a
subsequent claim to the Agency claiming that the Agency should be using Special Delivery to
despatch valuable documents.
The total cost of replacing her passport comes to £263.00.
As there has been no maladministration on the part of the Agency, in that the Agency correctly
addressed the package and sent it by recorded delivery, no Special Delivery pre-paid
envelope was provided, the CSU should refuse this claim.
Missed travel or holiday
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11.4.23
The Agency advises all applicants that they should not make any non-urgent
travel plans whilst their applications are being considered. Applicants who are exercising their
rights under the European Economic Area (EEA) Regulations may have their documents
returned to them while an application is pending enabling them to travel abroad. Applicants
also have the option to withdraw their applications if they need to travel urgently.
11.4.24
The Agency should offer compensation to applicants who have not been able to
make an essential journey abroad or missed a travel opportunity because it has lost their
documents or failed to return them in time (where reasonable notice has been given to the
Agency).
11.4.25
The following information is of use in assessing a claim for missed travel or
holiday:
• Unused flight tickets
• Confirmation of cost of holiday or flight from travel agents or airline
• Confirmation that no refund was given by the travel agent or airline
• Confirmation that the holiday or flight was non-transferable or non-refundable. The airline
or travel agent can provide this information.
Loss of Earnings
11.4.26
Some applicants may claim for loss of earnings where they have had to take a day
(or a number of days) off work to visit their Embassy or High Commission or to travel to one of
the Public Enquiry Offices (PEOs) due to maladministration by the Agency.
11.4.27
Customers must supply evidence of loss of earnings. This includes:
• Original wage slips, or certified copies, covering the period of loss
• Letter from employer confirming time off and loss of earnings (net)
• Copy of contract providing details of wages
11.4.28
If a claimant has only provided evidence of gross pay the following calculation can
be used to assess the net loss:
Basic tax rate payer
• Annual gross pay (up to) £30,000 minus £6,475 (personal tax allowance) multiplied by
0.75 (to account for tax and National Insurance), add back £6,475 = Annual Net Pay.
• Divide by 52 for weekly net salary and then again by the amount of days normally worked
each week for the daily net salary (customer may work less than five days a week).
Higher rate tax payer
• The CSU should use the Basic Rate calculation for the first £30,000 and the following for
the remaining amounts over £30,000;
• Annual gross pay (over) £30,000 minus £6,475 (personal allowance) multiplied by 0.55
(to account for tax and National Insurance), add back £6,475 = Annual Net Pay over
£30,000 only.
• Add the Higher Rate Annual Net Pay (HRANP) amount to the Basic Rate Annual Net Pay
(BRANP) amount for the total Annual Net Pay.
• Divide by 52 for weekly net salary and then again by the amount of days normally worked
each week for the daily net salary (remember that the customer may work less than five
days a week).
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• The personal tax allowance stated above (£6,475) applies to the 2009 – 2010 tax year.
This allowance wil increase each year. Information about the personal tax allowance can
be found at www.hmrc.gov.uk
Loss of benefits
11.4.29
In some circumstances an applicant wil have been unable to claim benefits such
as Income Support, Job Seekers Al owance, Child Benefit and Tax Credits due to
maladministration by the Agency.
11.4.30
The Department for Work and Pensions (DWP) wil not general y pay benefits
unless a person can show that they have indefinite leave to remain (ILR). In some cases
applicants may have been unable to claim benefits because the Agency has made errors which
have delayed a decision on the application. Pursuant to regulation 212A of the Social Security
(Claims and Payments) Regulations 1987 an applicant who has claimed asylum and
subsequently been granted ILR as a refugee was previously able to apply for a backdated
payment of the benefit they would have received during the time their asylum claim was being
determined (minus any asylum support they received from either NASS or their local Authority).
This ceased on 14 June 2007 following the introduction of the Integration Loan Scheme. The
Agency may therefore encounter cases which may merit financial redress on the grounds that
maladministration occurred prior to 14 June 2007 and resulted in the applicant being unable to
claim backdated benefits with the DWP before the change in policy.
11.4.31
People who have been granted ILR as a refugee may claim backdated Tax
Credits and Child Benefit if they make a claim through HM Revenue and Customs (HMRC)
within three months of the grant of leave.
11.4.32
In some cases the Agency may have sent decision letters to the wrong address or
failed to serve them at all. This could have prevented applicants from claiming backdated
benefits from the DWP or HMRC within the requisite timescale. The CSU should consider
offering compensation for loss of benefits in these circumstances.
11.4.33
The CSU needs to obtain the following information in order to assess claims for
loss of benefits:
• Date applicant would have been entitled to payments (this is the date they claimed
asylum)
• Date ILR was granted
• Whether the applicant received support from UK Border Agency, Local Authority or a
charity (this wil determine whether they are in fact entitled to any other benefit)
• Date support ended from UK Border Agency, Local Authority or charity (if support was
received)
• How much benefit the applicant would have been entitled to
11.4.34
Information regarding entitlement to Income Support or Job Seekers Al owance
can be obtained from the Department of Work and Pensions.
11.4.35
Information regarding any support the applicant received can be obtained from the
case owner, the applicant’s Local Authority or the charity in question.
11.4.36
If the applicant has been receiving support from UK Border Agency, the Local
Authority or a charity, the CSU should establish how much they received during the period in
question. The CSU should then establish how much benefit the DWP would have paid during
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the same period. If the applicant would have received more money from the DWP the CSU
should pay the difference.
Case study
Mr X is seeking redress for loss of benefits dating back to 26 June 1998. Mr X entered the UK
on 25 June 1998 and claimed asylum on 26 June 1998. He was granted ILR on 9 July 2002.
However, the decision was not served and Mr X was not made aware of his status until
February 2003.
Had Mr X received his status papers in July 2002 he would have been entitled to claim
backdated Income Support. However, Agency maladministration prevented him from meeting
the DWP’s twenty eight day time limit.
Mr X’s representatives have supplied us with a breakdown of the loss of benefit:
Income Support:
1998/1999 (40 weeks) @ £50.35 x 90% = £1812.60
1999/2000 (52 weeks) @ £51.40 x 90% = £2405.52
2000/2001 (52 weeks) @ £52.20 x 90% = £2442.96
2001/2002 (52 weeks) @ £53.05 x 90% = £2482.74
2002/2003 (14 weeks) @ £53.95 x 90% = £679.77
Total =
£9823.59
Job seekers Allowance:
July 2003 – November 2003 @ £53.95 = £1079.00
Total =
£1079.00
The Local Authority informed us that it paid Mr X £24 per week
Income Support:
£9823.59 – (£24 x 210 weeks = £5040.00) = £4783.59
Job seekers Allowance:
£1079.00 – (£24 x 20 weeks = £480) = £599.00
Therefore, the CSU should offer Mr X
£5,382.59 (£4783.59 + £599.00).
Legal fees
11.4.37
The Agency wil only consider compensating customers for legal fees if the costs
have been incurred as a direct result of its maladministration.
11.4.38
The CSU should obtain the following information in order to assess a claim for
compensation for legal fees:
• A detailed breakdown of the legal fees from the solicitors including what the fees were for
(letters, telephone calls, meetings, preparation of documents).
• Confirmation that the bil has been settled by the customer (the Agency cannot pay the
representatives directly as the contract is between the representatives and their client).
Refunds of application fees
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11.4.39
Chapter 1A of the Immigration Directorates’ Instructions (IDI’s) details the policy
with regard to refunds & fee exemptions for Immigration applications and claims
11.4.40
There is no current power in law to refund the fee paid for any application for
which a fee is specified in the Fees Regulations. However, in certain circumstances, it is
appropriate to refund the fee.
11.4.41
The Agency wil not refund a fee if someone applies for something even though
they do not meet the requirements of the immigration rules or other relevant legislation.
11.4.42
Where an error amounting to maladministration is made by the Agency, there is a
legal obligation to take suitable remedial action. Where a fee is involved, the CSU should take
such action as may be necessary to ensure that the applicant is not disadvantaged financially
by the maladministration. Some examples of maladministration are:
Handling Errors:
11.4.43
A customer’s passport has been lost within the UK Border Agency and as a result
an endorsement has been made on a status document. The applicant has subsequently
obtained a new passport and submitted a paid application for a No Time Limit (NTL) stamp or
Transfer of Conditions (TOC) endorsement.
Misleading Advice:
11.4.44
A customer has been given misleading advice by the UK Border Agency. In any
cases of this sort, there wil need to be supporting evidence. If it is alleged that the incorrect
advice was given by a UK Border Agency source confirmation of maladministration should be
obtained from that source to determine if a refund is appropriate. Other factors should also be
taken into account, such as any relevant information on the UK Border Agency website or in the
application form (or accompanying guidance notes).
11.4.45
An applicant has been given misleading advice by an entry clearance officer. An
example of this was the misleading information given by entry clearance officers in Islamabad
and Bombay to people issued with spouse visas between 2002 and 2005. This particular
example, which resulted in premature applications for ILR by visa holders who had travelled
late, is one where there was an alternative to refunding the fee - the premature application was
held until the qualifying period had been completed.
Other circumstances justifying a refund of fees 11.4.46
In addition to cases involving maladministration there are other circumstances in
which, as a matter of policy, a refund wil be appropriate. The customer would not necessarily
be entitled to a refund of other expenses but each case would need to be decided in its own
right.
• NTL or TOC applications where the passport is not one recognised by UK authorities
• Applications by members of the home forces or diplomatic staff who are stil exempt from
immigration control
• Unnecessary applications for ILR by people with indefinite leave to enter or remain in the
UK who have misread the residence permit in their passport and do not realise that they
already have indefinite leave
• Applicant applies for TOC/NTL but doesn’t have a passport to transfer the endorsement
into
• TOC applications where the applicant asks for a multiple entry visa to be endorsed in a
new passport. This is not a service which the UK Border Agency can perform
• Applications for leave to remain from within the Common Travel Area but outside the
United Kingdom
51
• Applications for leave to remain submitted from outside the Common Travel Area
• An application for leave to remain or NTL by someone who is a British citizen or had the
right of abode in the UK at the time of application
• Applications for a certificate of approval for marriage or civil partnership by any of the
following:
•
an EEA national
•
a family member of an EEA national exercising treaty rights
•
a person who is exempt from immigration control
•
a British citizen or other person with the right of abode in the UK
•
a person who has indefinite leave to enter or remain
•
a person who entered the UK with an entry clearance to marry the same proposed
spouse or civil partner
• Where a postal or online application has been withdrawn within a short time of being
made, that is before it has been entered onto the caseworking system (e.g., CID), or
within 7 calendar days of the date of application, whichever is the earlier date
• Where an applicant dies before the decision on their application is despatched
11.4.47
Whilst the above scenarios are not a comprehensive list of situations where a
refund would be considered, circumstances beyond these should only be based on compelling
business reasons.
Circumstances where a refund will not be considered:
• Application or claim is withdrawn
• Application or claim is refused
• Applications made too early
• An application for a Certificate of Approval for Marriage where the applicant has failed to
tell us that the ceremony is taking place in an Anglican Church
• Where an application is made for limited leave to remain, but it appears that the applicant
already has the appropriate period of leave
• Where an applicant applies for NTL and they have been naturalised before the date of
decision, but after the date of application
• Where someone granted leave as a refugee is applying for that leave to be transferred
into their national passport
• Where an EEA national or their family member makes a charged application for leave to
remain in the United Kingdom
11.5
Claims for non-financial loss
11.5.1
The normal approach to complaints where no financial payment is called for is to
offer an apology and an explanation. This may be sufficient and appropriate, people
complaining may also want reassurance that mistakes wil not be repeated.
11.5.2
Non-financial loss applies to cases where maladministration has directly caused
the customer exceptional distress, embarrassment, inconvenience, damage to health etc.
11.5.3
Compensation for non-financial loss wil only be paid in exceptional circumstances
and only where there is sufficiently compelling circumstances to justify such a payment.
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11.5.4
Account will be taken of the level of distress. However, the payments are
consolation payments only and are not intended to be based on a comprehensive assessment
of the distress actually suffered. A consolatory payment should be offered:
• When serious or persistent errors have been made
• When the CSU is reasonably satisfied that the Agency’s maladministration led to the
distress as claimed
11.5.5
Care should be taken to differentiate between compensation for actual financial
loss and a consolatory payment. It is not appropriate to offer a consolatory payment instead of
compensation for actual financial loss where it has not been possible to obtain sufficient
evidence to support the claim.
11.5.6
Each case must be considered on its own merits both in respect of whether a
payment should be made and how much compensation should be offered. This is necessarily
subjective but should reflect the degree of distress experienced by the customer. Not everyone
wil react to the same circumstances in the same way; a harrowing situation for someone could
be a minor inconvenience to somebody else.
11.5.7
When deciding claims for non-financial loss a CSU would need to look at:
• How serious was the error caused by maladministration;
• How long the error has persisted;
• What is the impact of the error;
• What is the duration of the impact on the customer.
11.5.8
Where there is an allegation that the maladministration has affected the customers
health objective evidence of the impact on their physical/mental health wil need to be provided.
This may take the form of a report from their GP or evidence from an employer that they have
been unable to work as a direct result of the il -health.
11.5.9
In some cases objective evidence won’t be necessary where it is self-evident that
severe distress would have been caused. An example would be a parent incorrectly being
informed of their child’s death.
-------------------------RESTRICTED NOT FOR DISCLOSURE------------------------
11.5.10
The following list is il ustrative only and is not intended to be either prescriptive or
exhausted but reflects general circumstances in which consolatory payments might be made.
Payment between £50 and £150
• Failure to answer correspondence (wil also be dependent on the number of letters and
the length of time involved);
• Interview/appointments cancelled without notice (wil also be dependent on the degree of
inconvenience caused).
• Where complaint/compensation claims have been badly mishandled/delayed.
Payment between £50 and £300
• Delay in dealing with application cased by error, e.g. files lost, incorrectly laid by, passed
between Directorates without action being taken.
Payments between £100 and £200
• Documents/files lost or other maladministration resulting in a missed holiday.
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Payment between £100 and £300
• Enforcement Officers visit an address where il egal entrants are wrongly thought to be
staying and cause unnecessary worry for the occupier.
Payment between £200 and £400
• Breach of confidentiality by passing on information to a third party, including sending
passports or other personal documents to an incorrect recipient;
• Missed family wedding or other family celebration (wil depend on how close the family
member is).
Payment between £200 and £500
• Delays/errors resulting in uncertainty about possible removal from the UK.
Payments up to £1000
• Inability to attend a dying relative or family funeral (will also be dependent on how close
the family member is).
• Incorrectly removing a person from the UK (wil be dependent on individual
circumstances);
• Unlawfully detaining a person (depending on individual circumstances).
----------------------------END OF RESTRICTED SECTION -----------------------------
11.6 Death of a customer
11.6.1
In the event of the death of a customer who has submitted a claim for
compensation because of maladministration and it is decided that compensation is appropriate
then payment should be issued to the deceased person’s estate.
11.6.2
If the next of kin submits a claim for compensation because he or she has suffered
actual financial loss and that loss was incurred because he or she helped support the deceased
person then redress should be offered in respect of the actual financial loss to the next of kin.
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54
ANNEX A
HMRC guidance on compensation for damage to vehicles
Statement of Principle
The general policy is that compensation should only be paid where we have either acted
unlawfully, or have unreasonably delayed making a decision. It should not be paid as a matter
of course if we restore something following the successful condemnation of the vehicle at either
the Magistrates Court or the Crown Court. It should also not be paid if we lose a case where we
have ‘delivered up’ the vehicle: the amount paid for delivery up is effectively a deposit that is
refunded if the claimant is successful.
Note that the provisions of s144 CEMA mean that even if we lose at a condemnation hearing,
we should not pay compensation beyond the value of the vehicle (if destroyed or disposed of)
and the value of any personal effects left in it (subject to para 3 below) if the Court has certified
that there were reasonable grounds for seizure.
1.
Replacement of tobacco and alcohol where Magistrates have rejected our case
at condemnation or seizure is overturned internally
Pay the purchase price abroad plus cost of one person return travel there within two
months (which wil typically be a return ferry ticket)
OR the UK purchase price if cheaper than the above.
2.
Vehicles: damage to vehicles in our care/custody
In this situation the damage may be covered by the department’s haulage and
storage contractors’ insurance <REDACTED> . In the event that the
damage is not covered by insurance, pay the reasonable costs of repairing the
vehicle to the condition it was in prior to the damage occurring (or the retail value if
less than the cost of repair). The vehicle condition report normally completed as soon
as possible after seizure wil normally be the basis from which damage is assessed.
3.
Vehicles: loss of items left in seized vehicle
Consider the merits on a case by case basis. Do not pay if the claim is
unsubstantiated and you are not satisfied that loss was incurred.
4.
Vehicles: destruction or sale at auction of standard and unique/specially
adapted vehicles
Compensation is payable where
(a) Magistrates reject our case at condemnation, whether or not a 144 certificate is
issued; or
(b) a seizure has been overturned on internal review prior to condemnation; or
(c) where the vehicle was disposed of prior to a successful request for restoration or
appeal against a non-restoration decision.
However, the relevant vehicle restoration policy should be considered in all cases in
para c above so that, if necessary, an appropriate sum can be deducted from the final
amount of compensation.
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Where compensation for the vehicle is payable, the basis is a
fair market value for
that particular vehicle at the time of seizure ie taking into account age and condition.
Retail price wil normally be appropriate. Use Glass’ Guide.
For standard vehicles, consult the forecourt (retail) price, except where satisfied that
trade price is appropriate (eg if claimant has access to a trade source).
For unique or specially adapted vehicles, an expert’s view wil be necessary from eg a
dealer in that marque. Be prepared to consider any documentation from the
applicant.
Note that where
(i) a seizure has been overturned as unlawful by the Court
or where on examination
of the evidence for seizure the decision is taken to overturn the seizure;
and (i ) we have the vehicle – ie it has not been disposed of
then it wil normally be necessary, in addition to returning it, to pay a sum equivalent
to our estimate of the depreciation of the vehicle’s value between the time of seizure
and the time of return. This is because compensation is payable on the basis of the
vehicle’s value at the time of seizure. However, compensation is not payable where
restoration is offered under the restoration policies.
5.
Vehicles: claims for compensation for anything other than (1) market value of a
vehicle on its destruction or sale at auction or (2) damage to the vehicle when
in our care, when a s144 certificate has been issued
No further compensation should be offered because of the terms of s144(2) CEMA
1979. See the Statement of Principle at the start of these Guidelines.
6. Vehicles:
either destruction or sale at auction of profit-earning vehicles, or an
unreasonable delay in returning such a vehicle, where there is a claim of loss of
business/profit/earnings etc
Consider compensation under three heads.
(a) the vehicle itself: compensate for retail price in the normal way
(b) hire charges for replacement vehicle: compensate for these if satisfied they are
reasonable
and there is proof they have been incurred
(c) loss of profits etc:
first consider - was the loss reasonably foreseeable by Customs
when the vehicle was seized? It must have been for compensation for loss of
profits to be due. With a lorry, the answer would normally be yes; with a private car
used by a travelling salesman, it may well be no.
Then consider whether the claimant mitigated (reduced) his losses, as he is
required to do. For example: if a vehicle is seized preventing the claimant from
continuing his trade, and he was able to but did not hire another vehicle which
would have allowed him to continue his trade, then normally no compensation
would be due for loss of profits
If satisfied that the loss of profits resulting from seizure was reasonably
foreseeable at the time of seizure and satisfied that the claimant took reasonable
steps to mitigate his loss, then compensation is due for loss of profits. To calculate
lost profits, accounting information wil be needed. Internal financial advice may be
needed to ensure the correct figure has been correctly calculated. No
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compensation wil be payable for speculative losses – eg loss of the chance to
enter a particularly valuable new contract.
Note – make sure that you do not double compensate for hire charges and alleged
loss of profits. If hiring a replacement vehicle allows the claimant to continue with
his trade in the normal way, then he wil be due compensation for the hire charges
incurred but not for any alleged loss of profits incurred while he had the hired
vehicle on the basis that hiring that vehicle allowed him not to lose profits.
Consider on a case by case basis and consult Solicitors Office in case of any
doubt.
7.
Vehicles: purchase funded by finance company
[Note – this section does not cover purchases funded by a loan contract or a credit
sale agreement where title lies with the user throughout and never with the finance
provider. It does cover situations where ownership passes from the finance provider
to the user after a period of time when a defined level of payment has been made,
such as when purchases are made through hire purchase agreements or conditional
sale agreements.]
In this situation the vehicle is likely to have been restored to the finance company. A
claim can be made by either the individual (‘the claimant’) or the finance company.
To consider claims you wil need a copy of the finance agreement and a record of
how many instalments have been paid and what deposit, if any, was set down at the
start of the contract.
Note: this area is legally complex. Officers are encouraged to use this guidance to calculate
compensation due, but it can only be of general application and in all cases involving finance
companies officers should ask Solicitor’s Office to confirm the proposed course of action.
(a) if the claimant stopped paying instalments at the time of seizure, or has continued
to pay instalments but has not paid the full sum due under the contract
(i)
claim by the claimant
In this case title to the car will rest with the finance company.
Compensation due is: Value of car at the time of seizure
less (Total due to be
paid under the contract as a whole
less Total paid by the claimant). This is
because he has lost the value of the car at the time of seizure but against that
must be set the payments he would have had to pay but now does not.
For example: car is worth £10,000 at time of seizure. Claimant agreed to pay a
total of £13,000 under the contract. Claimant has paid £2,000 deposit and
£6,000 in instalments, stopping his instalments at time of seizure. Therefore,
compensation due is £10,000 – (£13,000 - £8,000) = £10,000 - £5,000 =
£5,000.
If the result of the above calculation is a negative figure, that simply means that
no compensation is payable.
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(i )
claim by the finance company
The compensation due to the finance company is the instalments which it has missed out on
receiving – in the above example, £5,000.
Note: if the vehicle has been returned to the finance company, then they should be asked to sell
the vehicle to settle the compensation debt due to them by us. The company wil be
due compensation only if selling the car does not clear the debt we owe to it, and
then of course only to the extent of the debt stil outstanding. If the sale realises
more than the debt due to the company, then the terms of the contract may require
the company to pay the excess to the claimant. If that is the case, then the sum paid
by the finance company to the claimant wil reduce the compensation owed by the
department to the claimant in that amount. If the finance company refuses to sell the
vehicle in these circumstances, then the compensation paid to it should be reduced
by the value which we consider would be realised by the sale of the vehicle now.
(b) if the claimant has continued to pay instalments and has now paid the full sum due
under the contract…
…and the vehicle has been returned to the finance company (in error) with no
conditions attached
In this case the claimant wil have title to the vehicle but the finance company
wil have the vehicle, or wil have sold the vehicle and have the profits of the
sale. In the first instance, then, if a claim for compensation is received, the
finance company should be asked to deal with the claimant’s request, either by
returning the vehicle to him or by passing him the sale proceeds. (The letter to
the finance company should be copied to the claimant to keep him informed.)
In the unlikely event that the finance company accepts that it has the vehicle,
or that it did have it and has now sold it, but refuses to compensate the
claimant, then he should be compensated for the value of the vehicle in the
normal way and Solicitor’s Office wil advise on legal action against the finance
company.
…and the vehicle has been returned to the finance company (in error) on
condition that it is not returned to the claimant
Treat as above, as if no condition had been attached to the return to the
finance company.
(The condition must fall away: the claimant has title to the vehicle and so
Customs had no right to return the vehicle to the finance company. In those
circumstances, any condition imposed by Customs on the finance company
regarding its return to the claimant wil be meaningless and without force.)
…and the vehicle has been sold or destroyed by Customs
As the claimant wil have title to the vehicle, he should be compensated simply
for its value in the normal way.
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The finance company wil have suffered no loss and wil be entitled to no
compensation.
8.
Vehicles: claim for loss of use and car hire
8.1 Where the seizure has been overturned at Court and a s144 certificate was
not issued
Consider on a case by case basis and in the context of the duty on the claimant to
mitigate his loss. Legal authority suggests a rate of c.£90 per week for loss of use for
a medium sized car which is several years old. Alternatively, if there is a claim for car
hire costs it must (a) be for an equivalent or smaller vehicle (b) be reasonable and (c)
never exceed the cost of buying an equivalent replacement vehicle.
8.2 Where the seizure has not been overturned at Court but a decision has been
taken to restore following an internal review
Compensate as per para 8.1 above for any period of unreasonable delay in making
the restoration decision.
In calculating whether a delay is unreasonable, the start point is the date on which we were in
possession of all the information that led to the decision to restore (‘the crucial information’) –
that is, the date of our receipt of the information, not the date on the letter or the date the
letter was posted. Where we have sought additional information and none is produced, the
start point wil be the day on which it becomes apparent that no further information wil be
provided.
An unreasonable delay in issuing a restoration decision wil normally be a delay of more than
10 working days (ie every day apart from weekends and bank holidays) after that date.
For example:
-
Car is seized on Tuesday 1st April 2003
-
Request for restoration is received on Thursday 10th April 2003
-
Further letter containing the crucial information is received on Friday 25th April
2003
-
Restoration letter issued on Wednesday 4th June 2003
> Compensation for loss of use etc to be considered for 23 days
In cases of doubt, contact the Solicitor’s Office.
9.
Vehicles: claim for cost of purchase of replacement vehicle
Because we compensate for seized vehicles by paying the market value at the time of
seizure rather than at the time of return – see para 4 – it will not normally be
appropriate to pay compensation for the cost of purchase of a replacement vehicle.
See the attached worked example. In case of doubt, contact the Solicitor’s Office.
10. Miscellaneous claims (return journey home; overnight accommodation;
telephone calls; stress; etc.)
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Again, case by case consideration is necessary. It wil normally be appropriate to pay
standard class train fares to home address on the day of seizure for each member of the
party, and to pay for overnight accommodation if claimed (to be verified where possible) if the
applicant left the point of seizure after 9pm. It may be appropriate to pay taxi fares or for
overnight accommodation - when otherwise it would not have been - when the applicant is
elderly, disabled or was accompanied by smal children. Realistic claims for the telephone,
postage etc where the applicant was unrepresented should be considered and are payable in
principle: common sense is required. Normally, claims for ‘stress’ and similar should be
treated as inadmissible and not paid if not supported by medical evidence. If medical
evidence is forthcoming, consider on a case by case basis.
11. Legal
costs
Consult the general guidance at G9-2 and consider on a case by case basis. The overriding
test is whether it was reasonable to have sought the legal advice, and whether the fees are
reasonable. In the event of a significant dispute, contact the Solicitor’s Office.
12. Interest
Consider on a case by case basis, in relation only to reasonable and necessary
expenditure incurred by the claimant – for example, the cost of a train ticket home, or
the cost of hiring a replacement vehicle. Interest is not payable on the value of the
seized vehicle itself. It wil normally be appropriate to pay interest from the date of the
expenditure unless you consider that the applicant’s behaviour has been
unreasonable and has materially delayed agreeing compensation. Interest should be
paid at the rate of the Bank of England base rate plus 1%, which the department
considers realistically reflects what the applicant could hope to have earnt in interest if
he had been able to invest the compensation sum in a building society.
13. Ex-gratia
payments
Also known as consolatory payments. Consider where there has been significant
delay or genuine distress or other special circumstances. Also consult G9-2. Most
such payments wil be less than £200. Any ex-gratia payment must be expressed to
be without prejudice to any further contact the applicant may have with the
department.
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