“If you complain, we have to suspend the care planning process until that’s been finished”

In the Care Act Guidance, there is plenty mention made of the possibility of complaining. And the situation where one is not happy with the council itself, is one where referring people to outside independent advice is recommended. (Please add CASCAIDr to the Advice and Information sites!)

But nothing is said about recourse to the Monitoring Officer or judicial review, for matters where the concern is about the legality of what has been done or not done, as opposed to merely the irritation factor. Breaches of fairness or due process should be able to be worked out simply by doing what was left out – such as the giving of reasons, or proper involvement. BUT a decision regarding advocacy, eligibility or a final budget – or the omission to make one over a very long period of delay – is not one that complaining about will do justice to, if the approach to the decision or omission was UNLAWFUL in the first place.

There is no suggestion in the regulations underpinning the complaints system that statutory duties are, or should be, or even could be suspended whilst a complaint is being investigated.

Here is a fact sheet from AgeUK about the social services and health complaint system: AgeUK’s pdf on complaining, going to the Monitoring Officer or judicial review

As AgeUk says, it’s true that you CAN complain about all the sorts of things that a Care Act lawyer would see as potentially dodgy in public law terms:

  • the local authority has assessed you as not needing a service but you believe you need it (this might be an assessment or care plan challenge)
  • there have been delays or errors in dealing with your case (these might sound in public law as well, if bad enough)
  • the services arranged for you are not meeting your needs (if that’s the case, beyond any question of a difference of opinion, but to any right thinking person, that’s a legal matter as well)
  • you’re being asked to wait a long time for equipment or adaptations (again, these things could amount to a breach of statutory duty, and that sort of a claim may be your only claim, even if harm is suffered during the wait…)

AgeUK says this, and it’s not wrong to complain when you can. It will save you money, because as CASCAIDr has to charge for helping people with the making of a complaint – and not all of the above are within our FREE SCOPE category for advice, please note –

  • Most problems that arise should be able to be dealt with informally through conversations, e-mails, letters or meetings
  • If you want to complain about the registered provider of a social care service, you can also inform the Care Quality Commission, which regulates social care services in England. While they can’t help you directly, they may decide to investigate the care provider or enforce changes as a result.
  • If your care is provided by an independent agency commissioned on behalf of the council, you can still complain to the council about any difficulties, as the council remains responsible for making sure you receive suitable care.
  • There are also newish and hardly known-of rights of complaint for privately contracting self-funders of care services. If you fund your own care and you need to make a complaint, contact the Ombudsman and ask about its independent complaints review service.

The complaint system is underpinned by regulations, but those regulations do no more than require local authorities to have a system. Your local authority must provide you with a copy of information about it on request. It should publicise the procedure on its website and it should be easily available in various formats and through a range of channels reflecting the needs of the local population.

In England the scope of the system is not limited in any way, but nobody is OBLIGED to complain, before they start rattling the sabre of assertions about illegality.

The kind of thing the complaint system was intended for was rudeness, bias, delays, failure to stick to one’s own policies, ignorance (including of clear legal principles) and ‘wicked’ behaviour such as spite or malice.

So far as CASCAIDr is concerned, no council is entitled to look at a letter that says x y or z hasn’t been done lawfully, and just DEEM it to be a complaint. It will be an allegation of illegality – breach of Guidance, breach of statutory duty, failure to abide by common law rules of procedural fairness, breach of human rights – failure to take relevant considerations into account, or fettering of discretion or just plain old fashioned unreasonableness in all the circumstances…

Whilst the local complaint system MIGHT be designed to filter off such complaints and get those to the legal department or the council’s Monitoring Officer (the person in charge of governance in relation to lawful conduct) it does not have to do that. Most assertions of illegality just flounder about in the ordinary system, unless you know what to do with them to make them appear more formal. We’ve even heard of people’s letters setting out wrongdoing, being DEEMED to be a complaint, so we’ve started saying on no account to do that, please, in our letters.

CASCAIDr’s view would be what use is a complaints system if the complaints staff have no legal training and don’t work with the Care Act?

There will be cases where it makes sense to complain FIRST, to get to the bottom of the FACTS – about which a lack of clarity, often creates a problem that prevents a lawyer from being even ABLE to give advice to a person about their plight.

But once the facts have been clarified, one can see what is left over that is still disputed, and if this is a judgement or opinion relevant to a statutory duty, chances are that public law provides a more powerful remedy – and a letter about THAT is not a complaint. It is a letter to the Monitoring Officer (details and email addresses can be found here Post on using the MO, and list of most council’s MOs’ email addresses).

Or it is a pre action protocol letter, which CASCAIDr is entitled to write on your behalf, within either our FREE or our low cost chargeable charitable service.

There are no circumstances where a complaint, a letter to the MO, or even the polite threat of a judicial review is any justification for 

a) suspending care planning (because the needs will have been found to be eligible already)

b) suspending care funding that is already in place in a care plan (via a direct payment, for instance)

c) suspending contractual relations with a care provider for the person’s needs (failing to meet the assessed eligible unmet need)

The one thing to bear in mind is that the time limit for judicial review (3 months and sometimes less; only longer, if there is a good reason) is much shorter than the time limit for making a complaint (12 months in general, but the LGO is generous to people who are struggling).

If you have an issue where the facts are really complicated, then it is good to go and get the facts sorted out first, so we would encourage you to complain at top speed internally, if the council requires you to do so first, and insisting that it acknowledges that the delay in any eventual application for judicial review is not unreasonable, and then come to us, if not satisfied with the response of the council to that initial complaint.

In England at least, it is not considered to be wrong to propose legal proceedings without having complained first. The reason it is better to have done so, even if one fails at that stage is that all agencies are now under pressure, and one does not want to give a court a chance to say that one’s proceedings are premature and that adequate remedies have not been pursued first.

However, only the Monitoring Officer or legal proceedings make it possible to get a ‘stay’ of whatever action or decision that’s being challenged – an injunction in court, and the presentation of the MO’s report to Members, has that same effect under statute.

Please note that there is no equivalent to the MO in a Clinical Commissioning Group: they have governance officers, but they are not legally trained. Their only option is to take legal advice and very few have in-house public law expertise any longer…. which is why CCGs are now being shouted out for lack of legal literacy by organisations like the EHRC.