Statutory inspection of burial authorities, cremation authorities and funeral directors

Section 11 - Complaints

191. Complaints from the public or clients may be lodged about a relevant body. For example, existing Inspectors receive complaints about a range of issues including equipment, staffing, storage capacity, family disputes, allegations regarding poor practices and other issues.^[10]

192. The 2017 consultation did not ask for views about complaints procedures for the inspection regime. The Inspection Regulations Working Group discussed the issue of complaints, and raised a concern that a formal complaint may lead to disciplinary action against staff or legal action against a relevant body.

193. Subsequent to the Working Group discussions, the draft Funeral Director: Code of Practice was developed and contains a specific section on complaints. When the Code comes into force, funeral directors will be required to comply with the standards it sets. This includes that a funeral director must have a written complaints procedure, which must be available on their website (where this exists) or must be made available as soon as reasonably practicable in paper or electronic form on request. In the event of a complaint, the complaint procedure must be followed.

194. The Code also notes that clients who wish to make a complaint against a funeral director may raise the complaint with the funeral director directly, with their trade association, if they belong to one or with the Inspectors. Further, where a complaint is made to a funeral director which relates to a breach of the Code of Practice, it is required that the funeral director must inform Inspectors of the complaint within 48 hours of it being made.

195. It is intended that similar standards related to complaints will be included in forthcoming Codes of Practice for burial authorities^[11] and cremation authorities.^[12]

Scottish Government Position

196. As noted earlier in this consultation, it is intended that in the proposed inspection regulations, Inspectors will have the power to investigate complaints and may impose sanctions in relation to such investigations. It is intended that complainants will be able to submit their complaints electronically (i.e. via an online form or email), or by post. Complaints would then be distributed to an Inspector for assessment and investigation.

197. It is proposed that the procedure for investigating complaints include:

• When a complaint is first received:
  • A decision must be taken by Inspectors whether it is appropriate for them to investigate in terms of scope and severity, and
  • Checks undertaken to ensure the complaint has been ‘properly made’ (i.e. made in writing/electronically) and whether the complaint is new (i.e. has not already been investigated)
• Having decided to open an investigation, Inspectors will likely be required to:
  • Gather evidence. This may include an inspection, talking to the complainant, and talking to the relevant staff/managers/owners of the relevant body. Steps will be taken to ensure that the accuracy of any evidence is agreed by the Inspector and parties involved.
  • Take appropriate enforcement action within Inspector powers
  • Develop a report of the complaint investigation (including recommendations for any further action) and the outcomes of the complaint and actions taken
  • Ensure final complaint report is shared with the complainant and relevant body, and securely and accurately filed in the corporate record (note, complaint reports are not intended to be proactively published)
  • Include summary of complaints in annual reporting
• Undertake all the above in a manner that is sensitive to and appropriate for the context, given that complainants will often be bereaved. Ensure that all steps are undertaken promptly, while ensuring investigations are thorough and fair (including acting with fairness towards both complainants and staff/businesses/authorities who have been complained about).

198. Should a complainant be dissatisfied with the conclusions of the complaint report or subsequent actions taken, we do not intend that they will be able to challenge this. We do intend that Inspectors can, if appropriate, refer the complainant to other resources (for example trade bodies if appropriate).

199. If an Inspector initiates enforcement action against a body as a result of a complaint investigation, that body would be able to challenge this through the appeals process described earlier in this consultation.

200. We note that it is not intended that Inspectors will have any additional enforcement powers related to complaints beyond what they would be provided in relation to enforcing non-compliance with minimum standards as set in the 2016 Act, regulations, Codes of Practice, and (for funeral directors) conditions of licence.

201. The Scottish Government also intends to implement a procedure by which relevant bodies or the public may submit complaints about Inspectors.

Question 31 - Please provide any comments on the proposed approach to complaints.