Remedies are courses of action that people can follow when trying to pursue and resolve disputes. These range from the informal at one extreme to, at the other, judicial review proceedings as well as actions for negligence. These might sometimes be argued up the judicial ladder to the House of Lords and beyond to the European Court of Human Rights. The question of remedy is clearly significant, because apparent obligations in legislation and guidance arguably mean little, if it is unclear when, if at all, they are enforceable. Such remedies are covered in this chapter and the next.
This chapter covers remedies that in principle are not of the ‘judicial type’. That is, even if taken to their logical conclusion, they would not normally directly involve the courts – although they could do in some instances. There is a surprisingly wide range of options including going to councillors or the newspapers, complaining, and going to an independent ombudsman. However, it should not be assumed that challenging, informally or more formally, local authorities or NHS bodies, is either an easy process or likely to deliver a just outcome. Courage, stamina, determination and often support are likely to be required, if there is to be any chance of success. Neither should it be assumed of course that those with the most cause to complain or challenge decisions, are the most likely to do so in practice.
Amongst these non-judicial remedies, then, is resort to the local government or health service ombudsmen, who investigate maladministration causing injustice and can also investigate a failure in service. The ombudsmen apply certain axioms or principles of good administration. For local authority and NHS staff, such principles are particularly important because they apply to the process of assessment and provision of services. They also equate closely to professional and administrative good practice. The local government ombudsmen are generally highly regarded; and the health service ombudsman has waged an almost single-handed campaign for over 14 years in order to try to bring about fairness in decisions taken about NHS continuing health care.
Grievances are sometimes collective rather than individual. For instance, cut-backs and changes to NHS services over the past few years have led to a surprising number of local communities across the country to protest. The ingredients of such protest might take various forms including cross political party action committees, public meetings, marches, fundraising events, commissioning independent expert reports, petitioning the prime minister, thousands of letters, extensive use of the local and regional press, Parliamentary questions framed by the local Member for Parliament, judicial review legal cases, referrals to the Secretary of State for Health by the local health overview and scrutiny committee attached to the local council, and the involvement of the Independent Reconfiguration Panel, a notionally independent body appointed by central government to review controversial local changes to the NHS.
This chapter also covers the rules about both obtaining personal information from – and also the rules concerning the disclosure and sharing of personal information by – local authorities and NHS trusts.
4.1 INFORMAL REMEDIES
If something goes wrong, then informal channels for seeking a remedy – for instance, provision or restoration of a service, an apology, undertakings about the future – are various. They might include gently querying actions and decisions without pursuing a formal ‘complaint’. Well-informed service users or their advisers may nip in the bud dubious decisions.
Local authority officers or NHS managers are sometimes disconcerted when a service user or a representative refers to legislation or guidance from the Department of Health. Alternatively, well-informed staff and managers might know that they are on firm legal ground and demonstrate this from the outset; in which case a challenge might simply not be worth making. Well-reasoned and well-documented decisions rapidly dismay solicitors and others who may be contemplating a challenge.
Resolving disputes informally is often the preferable option; generally speaking, neither service user nor authority wishes to incur the time, trouble, stress and expense of engaging in a formal dispute. The possible souring of future relations between staff and service user might also be a significant consideration in practice. In addition, many service users, understanding the impossible demands being made all too often on hard-pressed health and social care staff, may be reluctant to complain – for fear of getting those staff into trouble. And, a judicial review legal case, the main type of legal challenge to decision-making by local authorities or NHS bodies, is often too blunt a tool.
4.2 COUNCILLORS, MPS, NEWSPAPERS
MPs and local councillors might take up the cases of constituents not on compelling legal grounds but simply for benevolent, compassionate or local political reasons.
Going to the newspapers can sometimes be effective. For example, in one case a 64-year-old man suffered from Parkinson’s disease. Following two major operations and subsequent infections at West Suffolk Hospital, he needed rehabilitation. Because of a shortage of beds at the hospital, the latter stated that he would have to go into a nursing home. However, he would not have proper access to physiotherapy and occupational therapy, both crucial for his rehabilitation. His wife (a retired nurse), to whom he was newly married, understood the implications and urgency and contacted the regional newspaper, the East Anglian Daily Times. Within two days of a front page article, the hospital suddenly found a rehabilitation bed (Grahame-Clarke 2005). Making a complaint or even threatening legal action would undoubtedly not have produced the same outcome. In this particular case, speed was everything, if the man was not to miss out on that all important window of rehabilitation.
4.3 LOCAL AUTHORITY MONITORING OFFICERS
Local authority monitoring officers (each authority is obliged to have one) have a duty to report on actual or potential contraventions by the local authority of legislation or codes of practice made under legislation, and on any actual or possible maladministration or injustice caused by the authority. Any proposal, act, omission or actual contravention might be by the authority, any committee, subcommittee or officer of the authority, or by any joint committee, on which the authority is represented (Local Government and Housing Act 1989, s.5).
4.4 DISTRICT AUDITORS
Indirect redress might be had by complaining to the district auditor, who might be concerned at unlawful or wasteful expenditure.
Day services, complaint to district auditor. The mother of an autistic man complained to the local government ombudsman and the district auditor that the council was paying an independent provider for a level of day services which, she claimed, her son was not receiving. The complaint led to the council stating that it would investigate and attempt to recover some money from the provider (Liverpool CC 1998).
4.5 LOCAL AUTHORITY SOCIAL SERVICES COMPLAINTS PROCEDURE
A new social services complaints procedure for adults was implemented in September 2006 by means of regulations passed under the Health and Social Care (Community Health and Standards) Act 2003 (ss. 114-115, 195). In early 2008, the Department of Health announced legislative reform that would change the system yet again by unifying the social services and NHS complaints procedures (DH 2008a).
4.5.1 GENERAL POINTS ABOUT THE SOCIAL SERVICES COMPLAINTS SYSTEM
The local authority social services complaints procedure is – in principle at least – suitable for most grievances. Furthermore, subject to statutory time limits, it should not be protracted. There is an appeal procedure involving review panels, which have wide powers to examine not only whether an authority has adhered to policy and procedure, but also the factual decisions that it reached. Notwithstanding the potential usefulness of the complaints procedure, there are general provisos:
•The local government ombudsmen have repeatedly found that complaints procedures are in practice too often ineffective and long-winded.
•The law courts have pointed out that the complaints procedure is unsuitable for resolving matters of law.
•If many, maybe over 50 per cent of complaints concern the rationing of resources (Simons 1995, p.40), then arguably the complaints procedure will be impotent in effecting remedies. This will be especially the case if local authorities are utilising lawful loopholes, rather than taking unlawful shortcuts, in order to limit expenditure.
•It is therefore something of an irony that significant political energy and resources are put into complaints procedures, in order to field a potentially large volume of complaints that arguably the complaints procedure is not equipped to resolve. In which case, the complaints procedure runs the risk – up to a point – of being an irrelevant diversion. Clearly, people would rather have good services than a good complaints system.
•Overworked staff can easily become demoralised if they are subject to a continual barrage of complaints; half a day spent recording a complaint made by a relative that morning means they are not seeing other service users. It is not always clear where the balance of the greater public good lies – in terms of how much time should be spent on complaints by scarce professional staff such as social workers and therapists, when they could be assessing and providing services for other people.
•Another potential weakness in the system is that local authorities are not obliged to follow a review panel’s recommendations, athough they should have good reasons for not doing so.
•Lastly, and more simply perhaps, a drawback of reliance on complaints procedures to ensure a good quality of decision-making is simply that (a) many service users do not want to be in the spotlight or to upset those providing services; and (b) it is stressful, exhausting and demanding to complain, unless the complainant is a ‘persevering, single-handed warrior, who thrives on skirmishes with public authorities’. These are not the characteristics of vulnerable, ‘inarticulate and meek’ people, in the words of one social services officer (Coombs 1998, p.48).
There is also particular concern that people who are funding their own care directly with independent care providers cannot refer a complaint to the local authority; their only remedy is to complain to that same provider. This is regarded by many as highly unsatisfactory, but central government has given little indication of any imminent change.
4.5.2 SUMMARY OF SOCIAL SERVICES COMPLAINTS PROCEDURE
The following represents a summary of the social services complaints procedure. The rules are drawn from regulations (SI 2006/1681) made under the Health and Social Care (Community Health and Standards) Act 2003, and also Department of Health guidance (DH 2006c). The latter, however, appears not to be ‘statutory guidance’; it is described as ‘best practice guidance’ only, and so lacks the degree of authority it might otherwise have had as statutory guidance (see 5.1.6).
Basically, the complaints procedure consists of three main stages: informal, formal and review. In order that these should operate smoothly, the local authority must appoint a complaints manager (SI 2006/1681, r.16).
4.5.3 IDENTITY OF THE COMPLAINANT
A person can make a complaint if he or she is someone in respect of whom a relevant social services function is being, or has been, discharged. The complaint can be brought by somebody else on behalf of a person. However, the local authority should not consider a complaint brought on behalf of a person lacking capacity, if it is satisfied that it is not in the person’s best interests. (However, this bit of the guidance would presumably not apply if the complaint was brought by a person with the requisite power to do so under a lasting power of attorney or court-appointed deputyship, on behalf of the person lacking capacity to do so himself or herself). Relevant social services functions are defined in s.1A and schedule 1 of the Local Authority Social Services Act 1970 (SI 2006/1681, rr.4-5).
4.5.4 NOT CONSIDERING THE COMPLAINT
A complaint should not be considered by the local authority if it is withdrawn, repeats a complaint already made, has been investigated by the local government ombudsman, is a ‘care standards’ complaint (see 4.5.5 below), is unclear, is frivolous or vexatious, the complainant intends to take legal proceedings, the local authority is taking disciplinary proceedings against a person complained about and in relation to the substance of the complaint, criminal proceedings have been commenced – or proceedings under s.59 of the Care Standards Act 2000 (that is, General Social Care Council proceedings) have been commenced (SI 2006/1681, r.5).
The guidance adds, a little unclearly perhaps, that a decision made by an approved social worker under the Mental Health Act 1983 would not fall within the complaints procedure, although complaints about the process of assessment would (DH 2006c, p.10).
A complaint, brought over a year from the date of the act or omission complained of, should not be considered. However, the local authority can waive this rule if it believes (a) that it would not be reasonable to have expected the complaint to have been made any earlier; and (b) if it is still possible to consider the complaint effectively and fairly (SI 2006/1681, r.5).
4.5.5 COMPLAINT ABOUT AN INDEPENDENT PROVIDER
A ‘care standards’ related complaint is defined as relating to services provided by a registered care provider under the Care Standards Act 2000 (in future, the Health and Social Care Act 2008), and which is not about the discharge or failure to discharge social services functions (SI 2006/1681, r.2).
Guidance explains that where ‘the local authority is responsible for the original assessment of need that led to a placement and associated funding, then the complainant should, in most instances, have recourse to the local authority’s complaints procedure. However, access to the local authority’s complaints procedure does not apply to people with private self-funding arrangements’. The latter must use the care provider’s own complaints procedure, which the provider is obliged to have under the Care Standards Act 2000 (DH 2006c, p.38).
If part, or all, of the complaint concerns an independent care provider registered under the Care Standards Act 2000, the local authority must within ten days (if part of the complaint) or five days (if all of the complaint) ask the complainant if he or she wishes the relevant details to be sent to the care provider. If so, the local authority must send it as soon as reasonably practicable (SI 2006/1681, r.6).
4.5.6 INFORMAL STAGE OF COMPLAINT
Within 20 days of a complaint being received, the local authority must take all reasonable steps to resolve the complaint informally, inform the complainant about the extent to which it considers the complaint well-founded, give reasons, and inform the person about his or her right to request a formal investigation (SI 2006/1681, r.7). Under the previous social services complaints procedure, the ombudsman took a dim view of stalling tactics by the local authority:
Stalling a complaint at the informal stage. When a response took 219 days, instead of 28 days, the local ombudsman identified the fact that an understandable wish to solve a complaint informally does not mean that the informal stage should go on longer than necessary; otherwise complaints can simply stall altogether (Sheffield CC 2002).
4.5.7 FORMAL STAGE OF COMPLAINT
Within 20 working days of receiving notification about the local authority’s informal response (or within 20 days of the expiry of the original 20-day period for informal solution – whichever is earlier), the complainant may at any time request that the complaint be investigated formally. On receipt of this request, the local authority must, as soon as reasonably practicable, record the complaint in writing, invite comment from the complainant, investigate the complaint and keep the complainant informed (SI 2006/1681, rr.8-9).
Within a maximum 65 days of the original request (or of a later date on which the record of the complaint was amended following the complainant’s comments) the local authority must send a report of the outcome of the investigation. If this is not possible, it should be sent as soon as is reasonably practicable. However, if the report has not been sent within 25 days, the local authority must explain why and when it expects to send a report. If the local authority thinks the complaint is well founded, it must provide an explanation of what action it proposes to take (SI 2006/1681, r.10).
Guidance states that the local authority can choose to appoint a local authority officer or a person independent of the authority to investigate. However, if it chooses to appoint the former, that investigating officer should not be in direct line management of the service being complained of.
Depending on the vulnerability of the complainant and the seriousness of the complaint, the guidance states that the local authority should consider appointing an ‘independent person’ in addition to the investigating officer. The independent person should not be an employee, or spouse of an employee or of a member of the authority The guidance sets out the role of this independent person, which essentially seems to be that of shadowing the investigation. The guidance also states more generally that complainants may request assistance from an advocate; in which case, the local authority should facilitate independent and confidential advocacy (DH 2006c, paras 3.4, 3.6, 3.7, Annex 1).
In the past, the local government ombudsman has commented on the need for independence, both in appearance and substance, to attach to formal investigations:
Independence of complaints procedure investigations. The ombudsman had no reason to doubt the ‘integrity and professionalism’ of the investigating officer; but to the complainants, the officer, who worked within the same directorate of the council involved in the complaint, did not appear to be independent – whilst the ombudsman, too, stated that in fact she may not have been independent (Manchester CC 1996a).
In another case (involving a complaint under a non-statutory complaints procedure), the council asked an officer to carry out an initial investigation into the actions of another officer – despite the fact that the two officers were in conflict. As the ombudsman put it, this beggared belief. A highly critical report emerged from the first officer, without the second officer having had the opportunity to put her point of view. Nothing was then done about the complaint until the two officers had left the council; this was ‘shocking’ to the ombudsman (Durham CC 1998).
Furthermore, if an investigation is to be effective, the officer responsible should fully understand her role and have been given guidance and support (Salford CC 1996).
4.5.8 REVIEW PANEL STAGE OF COMPLAINT
Following the formal stage (after receipt of the report or on the expiry of the 65-day limit), the complainant can request a review panel within 20 days (SI 2006/1681, r.11).
Within 30 days of this request, the local authority must appoint a review panel and the panel must convene. The panel must consist of three people, at least two of whom must not be members (or their spouses or civil partners) of the local authority. Local authority officers anyway cannot sit on the panel. The chair of the panel must be one of these independent people. Within five days of convening, the panel must decide whether the local authority dealt adequately with the complaint and notify both complainant and authority of its decision. If the decision is that the complaint was not adequately dealt with, the local authority must within 15 days notify the complainant of what action it proposes to take and provide guidance to the complainant about taking the complaint further to the local government ombudsman (SI 2006/1681, rr.12-14).
Guidance states that, amongst other things, the panel should apply the civil standard of proof (balance of probability) rather than the criminal standard (beyond reasonable doubt). The panel should record its findings, which ‘should explain simply and clearly any recommendations and the reasons for them’ (DH 2006c, paras 3.12, 3.21). The courts have in the past criticised a lack of reasons:
Failure of panel and local authority to give reasons. A failure of either the panel or the local authority to give reasons meant that the applicant was denied what she was entitled to; the court made a declaration that they should have been supplied (in R v Cornwall CC, ex p Goldsack).
The guidance also states that the complainant has a right to bring a representative, but that ideally this should not be a lawyer (DH 2006c, para 3.11). Conversely, it might scarcely seem fair to complainants if the authority deploys a member of its legal department in the proceedings:
Involvement of local authority lawyer in panel proceedings. The local ombudsman included in a finding of maladministration the observation that he found it ‘hard to see how a solicitor employed by the Council could be seen as an “unbiased observer” and consider[ed] the way in which he joined at the outset in the in camera deliberations of the Panel to be unwise at the very least’ (Cleveland CC 1993).
Whatever the potential shortcomings of the complaints procedure, the courts have ruled that it does not breach article 6 of the European Convention on Human Rights relating to a fair hearing. This is because the fairness of the local authority’s reaction to review panel recommendations is subject to judicial review; and, taken together, the complaints procedure coupled with the fallback of a legal case comply with the demands of fairness under article 6 (R(Beeson) v Dorset CC, Court of Appeal).
184.108.40.206 Scope of review panel’s function and of the complaints procedure generally
In the past, there has sometimes been uncertainty about the legitimate scope of the review panel’s deliberations. Some panels have considered the actual merits of decisions, while others have concentrated only on whether procedures have been followed. An example of the broader approach was reported in one legal case, when the complaints review panel found that the social services department had discharged its functions properly in relation to the complainant’s application for services – but went on nevertheless to recommend that the department consider providing precisely those services it had hitherto denied (R v Wigan MBC, ex p Tammadge).
Arguably a policy that excludes consideration by review panels of the merits of a decision would be an unlawful restriction of the statutory underpinning, which says nothing about not questioning the merits. The courts frequently refer to the suitability of the complaints procedure, rather than of the courts, for investigating disputed facts as opposed to legal issues (e.g. R v Plymouth CC, exp Cowl; also R (Ireneschild) v Lambeth LBC). In turn, the investigation of facts might then lead to a question of the merits of a decision.
Certainly the current guidance says nothing about the scope of the review panel, or of the complaints procedure generally, being limited. For instance, the guidance, non-exhaustively, refers to a complaint being about the following issues, which clearly could include both facts and merits:
•unwelcome or disputed decision
•quality or appropriateness of a service
•delay in decision-making or provision of services
•delivery or non-delivery of services, including complaints procedure
•quantity, frequency, change or cost of a service
•attitude or behaviour of staff
•assessment and eligibility criteria
•a local authority policy and its impact
•assessment, care management, review (DH 2006c, para 2.2).
220.127.116.11 Review panel procedures
The local ombudsman has investigated review panel matters on a number of occasions. Failure to offer the option of a review panel is maladministration (Manchester CC 1996a), or even gross maladministration, in the judgement of the local ombudsman:
Gross maladministration and refusal to convene review panel. Two complaints were made by the father concerning assessment and provision for his son on leaving school; his son had mild learning disabilities, a stress-related condition and was later diagnosed as schizophrenic. The first complaint in September 1995 was about the level of care, the second in October about the care provided in a mental health hostel. The father contacted the local ombudsman in January 1996, who in turn wrote to the council. The director of social services then wrote to the father outlining the services being provided but not referring to the second complaint or to the right to a complaints review panel. The local ombudsman asked the council to respond again and to deal with these matters; the council sent a second letter that covered some of the issues concerning the mental health hostel, but still failed to mention the review panel. The ombudsman asked the council to convene a review panel, pointing out that it appeared to be in breach of its duty.
The father received a letter in February asking him to contact the complaints section. He did so by telephone, saying that he would like his solicitor present at the panel hearing; this conversation was never formally recorded. In March he received another letter, asking him for a response to the February letter and saying that if no reply was forthcoming by the end of March, it would be assumed that he did not wish to pursue the complaint. The father never received a letter explaining why his complaints could not be dealt with in 28 days and indicating how long they would take; and a review panel was never convened.
The ombudsman found ‘gross maladministration’ in the handling of the complaint. The time taken was ‘entirely unacceptable’ (by July 1996, nothing had been resolved). The council should not have been chasing up letters it had already received a response to. It was only because of the ombudsman’s involvement that the father was ever informed about his right to have a review panel convened. Furthermore, although the council pointed out, rightly, that a request for a review panel is required in writing, it was ‘disingenuous of the council to imply blame on the complainants when it failed to fulfil undertakings to put matters in writing and failed to respond to correspondence’ (Liverpool CC 1997).
Basic fairness might be lacking at the panel hearing and mean the local ombudsman will find maladministration:
Procedures at the panel hearing. Not to give advance notice that it would not allow a hearing- impaired complainant to make a tape recording of the panel proceedings was maladministration; as was asking the same complainant to consider at the panel hearing a chronology that he had not been given in advance (Southwark 2001).
18.104.22.168 Outcome of review panel recommendations
The regulations do not demand, nor does the guidance suggest, that a local authority must follow the recommendations of a review panel.
However, the courts have with varying force suggested that local authorities should follow the recommendations. In R v Avon CC, exp M, the judge stated that it was unlawful to disregard the review panel’s findings without a good reason, given the weight and ‘one way’ nature of the evidence that had informed the panel’s decision. In R v Islington LBC, exp Rixon, the court stated that the greater the departure from the review panel’s recommendations, the greater the need for ‘cogent articulated reasons’.
Milder was the statement of the court in R v North Yorkshire CC, ex p Hargreaves that there was no general rule that local authorities must follow the recommendations of a review panel – but that in some circumstances it might be unlawful not to do so without a good reason.
The local ombudsman has found maladministration where the local authority failed to produce, as requested by the review panel, a detailed report within a year (Hounslow LBC 1995). If the complaint is about a decision taken by the director of social services, the ombudsman has stated that the recommendations of the review panel should be referred to someone else, such as the chief executive of the authority or the social services committee (Carmarthenshire CC 1999).
There have been many other local ombudsman investigations relating to a review panel’s recommendations or to the local authority’s response to those recommendations – in terms of compliance, non-compliance or clarity of response. For example:
Inadequate review panel outcomes. A review panel’s findings might be flawed on their face and lead to findings of maladministration by the local ombudsman – for instance, because of deficient evidence considered by the panel or apparent misinterpretation of a coroner’s report (Cleveland CC 1993). Or a panel might fail to evaluate a claim for compensation and to make adequate recommendations back to the council despite being ideally placed to do so (Warwickshire CC 1997).
Local authority responses to review panel. It was not maladministration when the local authority refused to follow a panel’s recommendation about arranging a residential placement for a man with learning disabilities. This was because no assessment of the man’s needs had been carried out, although this failure to assess was itself maladministration in its own right (Kent CC 1998).
When a local authority was prepared to follow its review panel’s recommendations for compensation after poor advice about state benefits had been given, the local ombudsman nevertheless criticised the panel for taking into account an immaterial factor when coming to its decision about the level of compensation. The panel had been prepared to recommend only £750 instead of the £5000 the woman had lost, on the grounds that it should not reimburse money that it was not responsible for issuing; the ombudsman held that this was an irrelevant consideration (East Sussex CC 1995).
When a panel recommended in December 1996 that the local authority carry out an urgent assessment of a woman with learning disabilities, it took seven months for the authority to allocate the task, a further seven months to gather the relevant information, and a further three months to complete the reassessment. It was not sent to the woman’s parents for a further two months. Services were not in place until December 1998. This was a year longer than it should have taken. The local ombudsman found maladministration and recommended compensation, including the cost of two hours of day care per week for 50 weeks (Oxfordshire CC 1999).
In any event a local authority’s response to a complaint and what it proposes to do should be clear. Thus the local ombudsman criticised the fact that the complaints officer first wrote to the complainants stating that the reviewer’s conclusions had been accepted; but then a second letter from the chief executive expressed disagreement with some of those conclusions (Bury MBC 2004).