The full range of remedies for dissatisfaction, or dispute resolution in health and social care, consists of judicial review, actions for damages, formal complaints under the current social services and NHS procedures, use of the default powers of central government, a reference to the local authority’s monitoring officer, a reference to the local ombudsman, the Health Service Ombudsman, or the auditor, a human rights action in front of the European Court of Human Rights – or even the UK courts, since the ‘incorporation’ of the Convention into UK law.
Where clients are making private arrangements for residential, home or day care services, or for private medical services, they are protected by the law of contract, which is beyond the scope of this site. It means that they are guaranteed services as and when contracted for, with the right to damages for breach of contract if the provider fails in its duties. The reality is, however, that unreliability usually ends with the termination of the contract, and the service user going elsewhere.
They are also protected by the law of negligence, so can recover compensation for treatment which fell below the standards reasonably expected of people in these fields. But for whatever reason, the average person does not hold out much hope for satisfaction from litigation against public bodies or medical professionals.
So it is right, we think, to see health and social care clients as only basically protected by the law, and in need of other methods for dispute resolution which are more constructive and have more than just money as an outcome at the end.
When clients are merely the beneficiaries of contracts for their care which have been made between an authority and a provider, the law now provides for the client to take the benefit of the contract, ie the client is able to sue on terms and conditions in that contract and receive damages for breach, even though s/he was not a party in the first place. This right can, however, be excluded at the time when the contract is made. We do not know, but can foresee that coping with the commissioning authority’s expectations is enough for most providers, so would guess that this new ‘third party’ right is usually excluded in practice, in order to retain the goodwill of providers.
Legal proceedings of this sort, before the Administrative Court, have the advantage of securing judicial scrutiny to a policy or a decision, relative speed and cheapness at the early stages, and access to interim remedies, such as injunctions to keep services in place pending a hearing. The drawback from a user’s point of view is the very short time limit, (basically 3 months), the lack of widespread expertise among private lawyers around the country, and the need for permission from a judge, before the proceedings can be started. A further deterrent is the lack of certainty as to whether the outcome will have any effect on the substantive outcome of the decision, second time around, even if it is successful in court. Litigants find it hard to credit that having won a judicial review, the body in question can lawfully go on to make the same decision all over again, so long as it goes about it a different way…
The grounds for judicial review are as follows:
Unlawfulness / Illegality
- misinterpretation or ignorance of statute law
- ignoring relevant considerations, or counting irrelevant ones, in the assessment or care planning process; or a decision which is completely outrageous and in defiance of morality or logic
This may consist of
- a) inadequate consultation
- b) bias on the part of the decision maker
- c) unfairness in some aspect of a hearing or decision-making process
- d) incomprehensible or inadequate reasons being given
Fettering one’s discretion
- sticking to a policy rigidly, no matter what the circumstances
Breach of a legitimate expectation
- ignoring criteria, whilst current, for no good reason; going back on a promise of a home for life for a service user
Doing something for an improper purpose
- profit-making from charging powers, agreeing a severance payment bonus forgoodservice, in order to get rid of someone quietly
Breach of Human Rights
- failing to restrain someone whose best interestsnecessitatedrestraint in the circumstances, or restraining them unnecessarily for the convenience of staff
Private law actions in court for damages
Actions for damages are appropriate when there has been a breach of a duty of care (- see the separate topic negligence), in a situation where reasonable care could reasonably have been expected. These claims can be brought in the County or High Court without having to get permission first, but the courts have all but shut the door on the potential of private law actions within the social welfare field. It is only negligence in the operational delivery of services, not the policy-related planning and arrangement and commissioning of them, which is likely to found a cause of action in court.
The courts have taken the view that the existence of the remedy of public law judicial review proceedings in the Administrative Court for an injunction or a declaration must have been regarded by Parliament as providing a sufficient remedy for those alleging a breach of duty. The stance has been that the fact that Parliament has provided for the expenditure of public money on benefits in kind, such as housing the homeless, or services for people who have disabilities, does not necessarily suggest that it also intended cash payments to be made by way of damages to those who, for whatever reason, do not actually get their assessed entitlement.
This approach fails to highlight that judicial review proceedings are
- a) subject to the permission of the Court, whereas ordinary proceedings may be brought ‘as of right’ so long as one can pay the Court issuing fee;
- b) only open to those with sufficient interest to bring the proceedings, a concept which is notoriously fluid in its application by different judges;
- c) capable of leading to the withholding of a remedy, even from a successful applicant, in the judge’s discretion, and
- d) subject to a 3 month time limit, whereas a private law action in negligence or breach of statutory duty may be brought at any time within 6 years of its accrual.
Courts have been particularly prone to taking this approach with statutes which are about social welfare, or intended to confer benefits at the public expense, not merely for the private benefit of those helped by the scheme. The approach is not a ‘rights’-based approach, but stems more from a vision of social welfare service provision as charity, rather than for the greater good of all.
It is just possible in legal terms that a care manager or registered nursing nurse co-ordinator (and the authority which was the employer) could be liable for negligent assessment, but not likely. The difference between these positions and that of an educational psychologist (who can be sued for negligence even when working in a statutory role for an authority) is that the latter offers advice to the parents or the child, which has an analogy in common law. The role of a care manager/approver of eligibility for a service does not exist outside the statutory framework, and the courts have appeared to wish to ring-fence these roles because they are so intrinsically bound up with matters of policy-making, and because the courts have thought that it was in the public interest for authorities to be safe from this kind of litigation.
Another type of action which may be more relevant to health and social care clients is an action in the County Court for breach of the Data Protection Act, with regard to subject access rights to personal data, or unlawful processing under that Act.
Complaints are governed by the Complaints Procedure Directions and local practice. (See complaints for more detail about the legal issues thrown up by the NHS and social services complaints systems). The complaints system operates without any charge to the complainant, unlike legal proceedings.
It is supposed to be unintimidating for the service user and others involved, because it is informal, but we have heard it said that it does not really give the employee who has been complained about a real chance to defend him or herself, because the emphasis is on resolving the dispute. In a local authority situation, where there is usually a need for ongoing service provision to the client, this tension can be particularly noticeable.
No interim remedies are available in the complaints system, other than by informal agreement. This often makes people resort to legal proceedings, which do offer interim injunctions, etc., so it is sensible to be prepared to offer the equivalent to interim relief, such as keeping a care plan in place pending the resolution of the complaint that the service user has brought.
Complaints panels will not usually permit a complainant to challenge a policy, but there is nothing in the procedure to prevent them from being a sounding board and passing on their view to the Director or Chief Executive.
Case law (Wigan ex p Tammadge) has analysed the role of the independently chaired Panel in the social services scheme, and established that departmental departures from the panel’s recommendations should be the exception, and then only, if clearly justified by reference to explicit reasoning. We would expect the same principles to be applied to NHS continuing care and Free Nursing Care panels when their determinations are not adhered to, in the future.
It is widely thought that people who sit on complaints panels need to be trained in their role, in getting to the bottom of facts and recording their reasoning, but there is no central scheme in place as yet, or any requirement that they be trained, that we are aware of.
The Local Government Ombudsman
This office’s remit is based on maladministration causing injustice; they investigate complaints for free, and have wide powers to call for answers and supporting documentation. CLAs (‘Commissioners of Local Administration’ is their full formal title) frequently award ex gratia compensation – that is, they recommend that a payment be made without admission of any legal liability, to make up for what has happened. Lord Denning in Local Government Commissioner ex parte Bradford Metropolitan City Council said that maladministration includes ‘bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on’ and there will be few councils who have never been guilty of any of those.
The Ombudsman must (or may) refuse jurisdiction to investigate, in the following areas:
(i) where the complainant has an adequate alternative forum for its complaint; and
(ii) where the Ombudsman’s remit is specifically limited.
However, in an appropriate case, such as a commercial organisation wishing to challenge an authority’s tendering/negotiation process for the award of a contract for the supply for goods/services pursuant to LGA 1972 s111, the ombudsman scheme provides an alternative and useful means for challenge to be brought to an administrative decision, where judicial review would probably not be available.
Nowadays complaints under the Social Services complaints procedure are very common and are seen as a respectable and appropriate way of avoiding more hostile steps such as judicial review or a complaint to the external Ombudsmen (Commissioners for Local Administration). But it is also very common for Independent Complaints Panels which sit at the apex of this procedure to recommend the payment of ad hoc compensation to make up for delay or misleading advice etc. Indeed, if the complainant is still dissatisfied, he or she may go to the Ombudsman who will investigate for free and who will possibly recommend that more compensation be paid. If the recommendation is rejected, in the latter case the Ombudsman is empowered to publicise the stance of the recalcitrant authority in the local press.
The regular recommendation of such payments, however, tends to obscure the legal fact that there was, until recently, no lawful power or duty in the statutory framework under which such compensation (public money) can be paid. It was unlawful to pay ‘ad hoc compensation’ when there was no underlying cause of action for an arguable legal claim. In such cases where negligence or some other wrong was in play, the claim, in terms of legality, was always properly and lawfully compromised by the offer of a payment. But there needed to be a recognised cause of action, such as negligence or assault, not a non-specific grievance. Most social services complaints do not involve an allegation of a wrong for which there is some prospect of a claim for damages. The fact that the Ombudsman has the power to make a recommendation that compensation should be paid does not supply the absence of any local authority statutory function conferred by the law, under which it could be implicitly lawful.
A formal finding of injustice suffered due to maladministration and a recommendation to pay by the Ombudsman, always gave an authority the power under s31(3) of the Local Government Act 1978, but local settlement recommendations did not give rise to this power. And neither did the determinations of complaints panels. Sanction was specifically required from the Secretary of State.
However, s92 of the Local Government Act 2000 now gives LAs the power to make monetary payments to people adversely affected by actions or decisions which although not unlawful, amount to maladministration. Authorities will no longer need the sanction of the Secretary of State to make such payments legal.
The monitoring officer
This officer, required by law in every local authority, (s5 Local Government & Housing Act 1989) bears statutory responsibility for ensuring that the authority does not break the law. A coherent complaint to this officer which raises a serious issue can lead potentially to a ‘stay’ on the proposed action or decision in question, pending the monitoring officer’s report to members.
The system provides a form of early warning to senior managers and members that something is amiss, and sometimes avoids formal legal proceedings being issued for want of proper attention to an allegation.
Haringey LBC’s own monitoring officer very nearly added to the law reports, with regard to the role of the monitoring officer recently. A social services client brought proceedings against the office of the Monitoring Officer rather than Haringey itself. The case settled, but its background illuminates the importance of the role of the MO. The client’s stage 3 social services complaint had still not been determined after 9 months, and the client wrote to the Monitoring Officer. The complaint to the MO asserted that the council was acting unlawfully and was guilty of maladministration in not completing stage 3 of the complaints process. But the MO simply passed the correspondence back to the social services department and the legal department, and told the client that he had done so.
This response was asserted to be a failure on the part of the MO to discharge his own statutory duties as MO under the statutory framework. In particular, the 1989 Act requires the MO to consider whether the matters complained of have given rise to or are likely to give rise to illegality or maladministration. This means that even likelihood of those wrongs occurring is enough to trigger the duty to come to a conclusion about the allegation, and trigger the 21 day period for a conclusion to be provided. The threshold is therefore a low one, and of course, the concept of maladministration covers a wide range of quite minor, as well as more major, defaults. The MO’s obligation is a personal one – the MO cannot delegate it to others. She or he may take advice from the council’s lawyers, but the conclusion on that advice must be the MO’s own. Accordingly, by failing personally to consider the possibility of maladministration, Haringey’s MO would have been accused of failing in his duty.
The case underlines a very useful, cheap, quick and effective mechanism by which people aggrieved by unsatisfactory (even if not illegal) decision-making and processes can raise the matter at the very highest level and ensure prompt action.
The default powers of central government
These ‘special measures’ powers under s7D of Local Authority Social Services Act 1970 have just begun to be cited by judges as alternative remedies to judicial review, sometimes justifying the refusal of relief or the grant of a remedy.
This has happened most recently in Barking & Dagenham v Lloyd and also in the case about dispersal of asylum seekers – Westminster County Council, ex P. The court said there that where the dispute between applicant and respondent is factual and where no clear and determinative issue of law arises of the sort which would resolve the real problem in the case, a comprehensive factual and policy review by the Secretary of State under s7D Local Authority Social Services Act 1970 was an alternative remedy which was more convenient, expeditious and effective than judicial review. In this case, the it was the interpretation of the Secretary of State’s own Directions and guidance which was under dispute and that made it especially appropriate in the eyes of the court to refuse to hear the matter.
We do not think that a case which raised serious issues of legality would ever be deferred by a court on the basis that a default power provided an equally convenient and effective remedy, however; to our mind, full blown unlawfulness can only be declared by a court, and so there is no point in spending time telling the DH about it, and waiting for it to do something about it, if unlawfulness lies at the heart of the dispute in question.
The powers have not been widely used in practice, so far as we know. The s7A LASSA powers to give specific directions to particular authorities are mainly wielded as a stick to beat authorities with, and achieve improvement through the threat of this further sanction. The s7D power differs from specific directions under s7A, in that it carries the further threat of an order of enforcement from the High Court.
Rights in contract
Even service users whose services are funded by the health or local authority in the first instance, now have rights under the Contracts (Rights of Third Parties) Act, and this means that they can enforce the terms of the contract made for their benefit, as between the provider and the authority (unless those parties have excluded the users rights to do so).
It is worth noting that in the absence of those rights, or a direct payment arrangement, or an agreement for private medical health care services, no service user has an enforceable contractual relationship with either the provider or the authority for the services in question. The health or social service is provided to the client under a statutory duty or discretion, even though the user may be charged (in the social care field at least) for ‘availing’ him or herself of it. This kind of service is not the same as a sale of a service.