The Secretary of State for Health has used powers under the Health and Social Care (Community Health and Standards) Act 2003 to introduce new legislation (The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 [the ‘2009 Regs’]) detailing how complaints in respect of health and social care provision should now be dealt with.
The 2009 Regs came into force, in the main, on 01.04.09 and replace all previous legislation and guidance in respect of a complaint made on or after 1st April 2009 to a “responsible body” about the exercise of its functions i.e. a local authority, NHS body, primary care provider or, where they are providing healthcare on behalf of an NHS body, an independent provider of health care.
Scope of the system
Under these regulations the ‘responsible body’ has an absolute duty to handle complaints in relation to the carrying out of its functions, including any that it has taken delegated responsibility for, under s75 NHSA 2006 (Reg 6), provided that it is made within 12 months of the matter arising or coming to the attention of the complainant and the complainant is someone who either received services directly from the responsible body or is directly affected by the action/omission or decision of the responsible body.
Where a local authority has commissioned an independent provider to provide social care on their behalf to fulfil their statutory duties individuals can still complain to the independent provider or local authority. It will be for the local authority to determine, in consultation with the complainant, what aspect of the complaint, if any, the local authority bears responsibility for investigating under these regulations and what aspects must be considered by the private contractor under their complaints procedure as required by the Care Standards Act 2000. More details on the responsibilities of local authorities under the 2009 Regs where they have commissioned an independent provider of social care on behalf of someone to whom they owe a statutory duty are set out in a separate topic.
Who can complain?
In addition to those in receipt of services or directly affected by the action, omission or decision of the responsible body regulation 5 of the 2009 Regs also allows for a representative to complain in certain circumstances. A representative may complain on behalf of someone who has died, a child, a physically or mentally incapacity person (as defined by the Mental Capacity Act 2005 [‘the MCA’]) or where the person directly affected has requested that a representative act on their behalf.
There is no requirement under the 2009 Regs that the representative is a properly appointed surrogate-decision maker appointed under the MCA, but where they are acting for a child the responsible body can only accept their complaint if it is satisfied that reasonable grounds exist for the representative to act on behalf of the child rather than the child making the complaint directly. Further where the representative seeks to act on behalf of a child or someone mentally incapacitated then the responsible body is again only able to accept the representative’s authority to act if it is satisfied that the representative is acting in the best interest of the child or incapacitated person. If the responsible body intends, because it does not believe that these requirements are met, to reject the authority of the representative then it must set out, in writing, to the representative why it has formed that opinion.
Staffing the complaints process
Under the regulations the responsible body must designate both a ‘complaints manager’ to manage the procedures for handling and considering complaints in accordance with the 2009 Regs. and a ‘responsible person’ to ensure compliance with those arrangements and ensure any necessary action is taken in light of the outcome of a complaint. (reg.4 2009 Regs.).
Principles of complaints management
The complaint procedure must ensure that complaints are dealt with efficiently, are properly investigated and that complainants are treated with respect and courtesy and receive assistance to enable them to understand the procedure in relation to complaints, or advice as to where they can obtain such assistance. All complainants can now expect to receive ‘a timely and appropriate response’ and be told the outcome of the investigation of their complaint, including what action was taken, if this is necessary, in light of the complaint (reg.3 2009 Regs). There is also now scope to investigate a complaint even if disciplinary action is being considered or taken against a member of staff, provided the organisation has regard to good practice around restrictions in providing confidential/personal information to the complainant.
Exclusions from the system
Reg.8 sets out that the regulations do not apply where the complaint is made:
- by a responsible body (i.e. a local authority, NHS body, primary care provider or independent provider),
- by a LA/NHS employee about matters regarding their employment,
- orally, and resolved to the complainant’s satisfaction, within the next working day,
- has been previously been investigated under these or the 2006 Regs or by the Local Commissioner under the Local Government Act 1974,
- involves concerns regarding compliance with the Data Protection Act 1998 and/or Freedom of Information Act 2000.
Further, the Department of Health has agreed with the Department for Children, Schools and Families that complaints about children’s social care will not be included within these reforms.
Form of complaint
The responsible body must comply with the procedure as set out in the 2009 Regs, which allows that a complaint can be made orally, in writing or electronically.
However, where it is made orally the obligation is on the responsible body to record the complaint and provide a copy of their record to the complainant within three working days of receiving the complaint.
The responsible body is also expected, within this time-frame, to contact the complainant to discuss the way in which it proposes to handle the complaint, including detailing how long they expect the investigation to take and a date by when the complainant can expect a response from the responsible body. If the complainant will not enter into discussions with the responsible body there is still an expectation that the body will notify the complainant, in writing, of the time it will take to investigate the matter and respond to the complaint. Regulation 14(3) makes clear that the period of time it takes to investigate and report should not, without exceptional reasons, be longer than 6 months.
Throughout the period of investigation the responsible body is expected, by virtue of regulation 14, to keep the complainant informed as to how the matter is progressing.
It must also ensure that, as soon as the matter is fully investigated, the responsible person submits to the complainant a written report detailing how the complaint has been considered, the conclusions reached in relation to the complaint, including any issues identified by the complainant, detail whether any remedial action was needed and confirm whether such action has been taken or is proposed to be taken.
In addition the report must also make clear to the complainant their rights to take matters further either to the Health Service Commissioner or, where the complaint relates only to the functions of a local authority, to the Local Government Ombudsman.
Publicising the results
The 2009 Regs also make clear that a responsible body is expected widely to publicise their complaints procedure and maintain a careful record to monitor the number of complaints received and whether these were managed in line with the requirements set out within the 2009 Regs. There is also a requirement that the responsible body produce an annual report detailing not only the number of complaints received, but also information as to how many of these were well-founded and how many have gone on to either the Local Government Ombudsman or Health Service Commissioner. They must also detail matters of general importance to the public and the action that has been taken by the body to improve services as a result of the complaints.
If you are getting services from a private or voluntary sector provider of social care, eg personal care or residential care – without having been assessed as eligible for the arrangement of these by the local authority’s social services department, or without the intervention of the NHS in any sense – such as the PCT making the arrangement for you – you have to complain to the organisation in question, directly, under their own complaints procedure which must comply with the requirements as set out in HSCA. At this time you have no further route for taking an unresolved complaint higher, other than to the ordinary courts either as a claim for breach of contract or a negligence action if you have been caused physical harm. You can judicial review the HSC or the LGO (as these are public bodies) if it is the complaint recipient, when it does not abide by the rules.
From October 2010, even if you are privately funding your care and using private sector services, you will be able to go to the local government ombudsman, who has acquired a remit to offer a determination of whether the complaint is justified. This direct complaint system also applies (and the extension of it will apply too) to people getting a direct payment form of personal budget for adults social care services, because when someone takes a direct payment, they become a private purchaser. If you have agreed with the local authority to receive support by way of direct payment but contracted with the local authority to manage this on your behalf as your own private purchasing or commissioning agent you will benefit from these changes, particularly where the issues you raise do cross over into the local authority’s functions regarding monitoring or adult protection.
If you are getting such services after having been assessed as eligible for them by the local authority social services department, and you do not choose to take the money as a direct payment, such that the LA manages the service arrangements for your benefit, under a contract of its own making, the system requires you to complain first to the organisation in question, but with a fall-back to the local authority as a responsible body, under the 2009 Regs and from there on, to the local government ombudsman, if dissatisfied with the outcome.
If you have been assessed as eligible for services by a local authority social services department, but have chosen to take the money either by way of direct payment it may still be worth notifying the local authority of any complaint you may have regarding the provision of services you have independently commissioned. Whilst the local authority may not have a remit to investigate all aspects of the complaint it may have a duty, under the 2009 Regs, to consider whether the issues you have raised call into question whether it has successfully carried out its own functions, including any requirements regarding the monitoring of direct payment arrangements and adult protection duties. If you were unsatisfied by the local authority’s handling of the complaint in relation to these specific functions of the local authority those aspect of the complaint could then go on to the local government ombudsman for further investigation.
If you are getting privately arranged health care that you have contracted privately for, you are not covered under these regulations and would only have recourse to the provider’s complaints procedure and thereafter the ordinary courts for breach of contract or a negligence action if you have been caused physical harm.
If you are getting National Health Services from a private provider who is acting as the NHS’s agent, then your complaint can go to the National Health Service as a responsible body. You do not have to go to the provider first: regulation 7 ensures that provided the PCT is made aware of your complaint they will determine whether it is a matter that they should consider directly or then refer, with your consent, to the provider. Where the PCT receive a complaint that does not relate wholly or on part to their own functions they will only have the power to investigate those aspects. Therefore if the complainant does not consent to the matters which relate to the functions of the provider being referred to the provider that aspect of any complaint will not be taken further.
Department of Health guidance: www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_095408
Complaints in Adult Social Care
Issues arising from the process relating to litigation
Complaints co-ordinators may need training to analyse the contents of complaints letters, and to distance themselves from the personal, in order to focus on the real issues in the case.
The Directions require that reasons must be given by the Review Panel, but not at the earlier stage of the council’s complaints officer responding to the complainant’s formal written complaint; and this concession to administration has contributed to the variation in standards of management of complaints from one area to another, we feel.
The government guidance which suggests that people should not bring a lawyer with them, at least not one acting in a professional capacity, is not binding law, as such. We would suggest that the more serious the complaint is, and especially if it involves a dispute as to the facts and someone’s reputation or fitness for the work turns upon what is being alleged, the more it is likely that the rules of natural justice would demand that both parties affected, be enabled to use skilled forensic help to get to the bottom of the matter.
The crucial matter to determine as a matter of policy, in our view, with every independent chair of the Review panels, is this: is the panel going to treat itself as able to consider the rights and wrongs of the decision involved, and look into professional judgements which were made, and comment on them and upon the criteria which have been used in the case? Or is it going to regard itself as there just to check and lightly scrutinise the propriety of the processes and steps which have been taken, taking a hands-off approach to matters of professional judgement, or the appropriateness of the authority’s criteria?
Unbelievably, this seems to be a matter of choice for each Panel. The SSI’s position has always been that the Department of Health Guidance required more than just the latter approach. We think that if authorities want to convince clients that the complaints process holds more for them than judicial review, it will be necessary to fund training for complaints panel members and clarify the role.
Satisfaction levels with complaints are not known to be high. The same sort of variation in approach of different panels, which has been criticised in the NHS system, is a bone of contention in social services too. Now that more than 50% of domiciliary care is outsourced, the service user can be easily confused as to who a complaint should be taken up with.
It is our view that in all cases, the authority has a responsibility to follow up a complaint about any service provided, under cover of a care plan, through its own providers or contractors. It is legitimate to expect the provider to deal in the first instance with a complaint about a specific matter, but if no mutually acceptable satisfaction is obtained for provider and client, then it is an issue for the local authority, because the care plan may be jeopardised.
The Beeson case has major implications for the make-up of each complaints panel, because it held that in respect of a decision about the alleged deliberate deprivation of assets by a service user in residential care, there is an ‘article 6’ human rights problem about the absence, overall, from the system, of any independent impartial determination of a dispute over an authority’s judgment of the user’s intention in such cases. The court suggested that this absence could be cured if only the complaints panels which exist are made up of three independent persons, rather than just independently chaired. In time it is our view that this will become the norm for all complaints panels in the health and social care system, and that this change will make complaints hearings a true alternative to confrontational litigation.
The Cowl case comes the closest so far (after Lloyd v Barking & Dagenham) to the UK court saying that disputes must be resolved through the complaints or some other alternative dispute resolution mechanism, on pain of the dissatisfied person being denied access to the judicial review courts. However, certain provisos must not be overlooked. Firstly the court thought that this was the right approach in cases where there is no disputed area of relevant legal principle – because the complaints panel members are not necessarily lawyers, and cannot in any event, lay down the law in a way which binds the authority in question – and secondly, the court recognised that interim remedies such as a ban on reducing the services pending trial, will often justify legal proceedings. In that regard, the authority can always offer to keep the services in place in any event pending the complaint being heard, and thus save costs that way instead. Appended to the transcript of that case may be found a schedule of the steps agreed by the parties to ensure the fairness of that complaint hearing, including the services of an independent law firm and representation by an advocate, if desired. It should be noted that an open letter was sent by Plymouth in this case before trial, offering to treat the contentions of the claimants (it was a closure case) as formal complaints, and that the court heartily approved of this step in the action.