Schedule 3 – Investigation of complaints about privately arranged or funded social care and palliative care
524.Paragraphs 1 and 2 insert a new Part 2A and 2B into the Public Services Ombudsman (Wales) Act 2005 (“the 2005 Act).
525.New section 34A sets out the three matters to which Part 2A applies: (1) action taken by a care home provider in connection with the provision of accommodation, nursing or personal care in a care home in Wales; (2) action taken by a domiciliary care provider in connection with the provision of domiciliary care in Wales; and (3) action taken by an independent palliative care provider in connection with the provision of a palliative care service in Wales. Part 2A does not apply to complaints which may be dealt with under Part 2 of 2005 Act or to matters described in new Schedule 3A to the 2005 Act. The Welsh Ministers may by order amend Schedule 3A (matters excluded from the Ombudsman’s consideration) but must consult the Ombudsman before doing so. Such an order must be laid before and approved by a resolution of the National Assembly for Wales. The terms used in this section are defined in sections 34R to 34T.
526.Section 34B mirrors the general approach taken in section 2 of the 2005 Act. By virtue of section 34B(1) the Ombudsman may only investigate a complaint relating to a matter to which Part 2A of the 2005 Act applies if:
the complaint has been duly made or referred to him/her; and
prior to the Ombudsman considering the complaint, the matter must have been brought to the attention of the provider to whom the complaint relates. The provider must also have been given a reasonable opportunity to consider the matter and to respond.
527.In the case of complaints about independent palliative care providers there is an additional condition that the independent palliative care provider must have received public funding within three years preceding the date of the action to which the complaint relates. “Public funding” is defined in subsection (3) and means funding from the Welsh Ministers, a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006, an NHS Trust or a county council or county borough council in Wales. This could, for example, cover grant funding provided by the Welsh Ministers to the independent palliative care service.
528.Sections 34B(4) and 34E set out the circumstances in which a complaint is duly made to the Ombudsman. Section 34B(5) and section 34F set out the circumstances in which a complaint is duly referred to the Ombudsman by a provider to whom it relates. Section 34B(7) enables the Ombudsman to investigate a complaint even if the specific requirements as to the way a complaint is to be made or referred have not been fulfilled if the Ombudsman considers it reasonable to do so. Sections 34B(8) and (9) provide the Ombudsman with a wide discretion as to whether to begin, continue or discontinue an investigation. Section 34B(10) makes clear that the Ombudsman may begin or continue an investigation even if the complaint has been withdrawn. This may be appropriate, for example, where a ‘lead’ complainant has made a complaint about a provider’s action which has also affected other persons, but has subsequently withdrawn his or her ‘lead’ complaint. In such cases, the Ombudsman may consider it appropriate to begin or to continue an investigation, despite the withdrawal of the ‘lead’ complaint, so as to protect the interests of the other persons.
529.Section 34C mirrors section 3 of the 2005 Act and provides the Ombudsman with a wide power to take steps to resolve complaints made under Part 2A of the 2005 Act without proceeding to formal investigation. The power is available to the Ombudsman to use instead of, or in addition to, the power to investigate under this Part.
530.Section 34D is based on section 4 of the 2005 Act. It lists the persons who may make a complaint to the Ombudsman under Part 2A of the 2005 Act. A person may make a complaint if he or she is a member of the public (“the person aggrieved”) who claims to have sustained injustice or hardship as a result of maladministration or service failure (as the case may be), or if he or she has been authorised to act on such a person’s behalf, or otherwise appears to the Ombudsman to be appropriate to act on such a person’s behalf. However, it is not only individuals who can complain to the Ombudsman: companies and organisations can also complain to the Ombudsman about injustice or hardship suffered by members of the public, provided that the conditions in subsection (1) are satisfied. The Ombudsman has the power to decide whether the requirements of section 34D have been met in a particular case.
531.Section 34E requires complaints to the Ombudsman to be made in writing (which includes by electronic means). However, under section 34B(7), the Ombudsman may decide to accept a complaint made otherwise than in writing if he or she thinks it reasonable to do so. For example, if the person aggrieved has a disability which makes it difficult for that person to make his or her complaint in writing, the Ombudsman has discretion to accept an oral complaint instead.
532.Section 34E(2) provides that the time-limit (“the permitted period”) for making a complaint to the Ombudsman is:
where the person aggrieved has notice of the matter before the date on which section 34B comes into force, the period of 12 months beginning with the date on which the section comes into force; and
in any other case, the period of 12 months beginning with the day on which the person aggrieved first had notice of the matter.
533.Again, under section 34B(7), the Ombudsman has discretion to consider a complaint made outside that time limit if he/she considers that in the circumstances of the case it is reasonable to do so. The Welsh Ministers also have a power to make regulations modifying the application of the 2005 Act to former care home providers in Wales, former domiciliary care providers in Wales and former independent palliative care providers in Wales (see the amendments made to section 42 of the 2005 Act by paragraph 29 of Schedule 3 to this Act). It is anticipated this power may be used to vary, for example, the time-limit in respect of which complaints about the actions of such persons must be made to Ombudsman.
534.Subject to the particular express requirements in the 2005 Act, it is for the Ombudsman to decide his or her own procedures and, in particular, section 34E(3) provides that it is for the Ombudsman to decide whether the requirements of section 34E have been met in a particular case.
535.Under section 34F a provider can refer to the Ombudsman a complaint which has been made to the provider. However, the provider may do so only if the complaint has been made to the provider by a person who would have been entitled to make that complaint directly to the Ombudsman. The complaint must also have been made to the provider before the end of the “permitted period” referred to in section 34E(2). Where a provider refers a complaint to the Ombudsman, the referral must be in writing and must occur before the end of one year beginning on the day on which the complaint was made to the provider. Under section 34B(7) the Ombudsman may, for the purposes of accepting a referred complaint, disregard either (or both) of those time-limits if he/she considers that it is reasonable to do so.
536.Section 34G provides that the Ombudsman must prepare a statement of reasons in relation to any decision by him/her not to begin, or to discontinue, an investigation. Such a decision may be made, for example, where the Ombudsman has resolved a complaint through alternative means under section 34C and therefore decided not to undertake a formal investigation.
537.Under section 34G(2), the Ombudsman must send a copy of that statement to:
the person who made the complaint to him/her; and
the provider to whom the complaint relates.
538.Under section 34G(3) the Ombudsman may also send a copy of the statement to any other person.
539.The Ombudsman may publish such a statement if the requirements of section 34G(4) are met. The Ombudsman may only publish such a statement if he/she considers that it is in the public interest to do so. In reaching his/her view, the Ombudsman must take account of the interests of the person aggrieved and any other persons he/she thinks appropriate.
540.Sections 34G(7) and (8) prohibits the Ombudsman from sending out or publishing a statement that:
names any person (other than the provider to whom the complaint relates); or
includes information which, in the opinion of the Ombudsman, is likely to identify such a person and which, in the opinion of the Ombudsman, can be omitted from the statement without impairing its effectiveness,
unless the Ombudsman considers that it is in the public interest to include such a name or identifying particulars. This prohibition does not apply in relation to the version of the statement sent to the complainant.
541.Section 34H(3) provides that subject to the requirements in subsections (1) and (2) of that section, it is for the Ombudsman to decide the procedure for conducting an investigation. The Ombudsman could, for example, establish different procedures for different types of complaints and he/she could, in any particular case, depart from any such established procedures if he/she considered it appropriate.
542.Section 34H(4)(a) makes it clear that the Ombudsman may make such inquiries as he/she thinks appropriate. Section 34H(4)(b) provides that it is for the Ombudsman to decide whether a person may be legally represented or be represented in some other way (for example by an independent advocate).
543.Section 34H(6) empowers the Ombudsman to make payments towards the expenses of persons assisting him/her in an investigation, provided they are properly incurred, and to pay certain allowances. It is for the Ombudsman to determine whether it is appropriate to make such payments or to impose any conditions on such payments.
544.Section 34I confers wide powers on the Ombudsman to require the production of information or documents in relation to an investigation (section 34I(2) and (3)) and to require certain persons to provide him/her with any facilities he/she may reasonably required (section 34I(4)). The latter provision may be needed, for example, if the Ombudsman requires the use of certain computer hardware or software to view documents or information provided.
545.The Ombudsman has the same powers as the High Court in relation to the taking of evidence from witnesses (section 34I(3)).
546.Section 34I(5) provides protection for those from whom the Ombudsman may require evidence or the production of information or documents. Such a person cannot be required by the Ombudsman to give any evidence or produce any documents which that person could not be compelled to give or produce before the High Court.
547.Section 34I(6) prevents information from being withheld by the Crown on the ground that it is subject to an obligation to keep it secret or a restriction on its disclosure.
548.The effect of section 34I(7) is that, in relation to the Ombudsman’s power to require evidence or the production of information or documents, the Crown cannot rely on either its special privileges or immunities to defeat the Ombudsman’s right of access to such information under section 34I(5).
549.Sections 34J(1) and (2) enable the Ombudsman to certify to the High Court that, in his/her opinion, a person has without lawful excuse obstructed the Ombudsman (or a member of his/her staff ) in the discharge of his/her functions under Part 2A or that the person has acted in a way that, if the act was done in relation to High Court proceedings, would amount to a contempt of court.
550.If the Ombudsman issues such a certificate then the High Court may inquire into the matter and if the High Court finds that the person concerned has obstructed the Ombudsman, the High Court may deal with the person as if he/she had committed contempt in relation to the High Court (section 34J(4)).
551.Section 34K(2) provides that after conducting an investigation the Ombudsman must, unless he/she decides to report under the alternative procedure set out under section 34N, prepare a report on his/her findings and send a copy of that report to the persons specified in section 34K(3). The Ombudsman may also send a copy of the report to any other persons he or she thinks appropriate.
552.The Ombudsman may publish his/her report if the requirements of section 34K(5) are met. The Ombudsman may only publish such a report if he/she considers that it is in the public interest to do so. In reaching his/her view, the Ombudsman must have regard to the interests of the person aggrieved and any other persons he/she thinks appropriate.
553.Sections 34K(8) and (9) prohibit the Ombudsman from sending out or publishing a report that:
names any person (other than the provider to whom the complaint relates); or
includes information which, in the opinion of the Ombudsman, is likely to identify any person and which, in the opinion of the Ombudsman, can be omitted from the report without impairing its effectiveness,
unless the Ombudsman considers that it is in the public interest to include such a name or identifying particulars. This prohibition does not apply in relation to the versions to the report that are sent to the complainant or the Welsh Ministers. In reaching his or her view as to whether it would be in the public interest to include this information in the other versions of the report, the Ombudsman must have regard to the interests of the person aggrieved and any other persons he/she thinks appropriate.
554.Section 34L provides the Ombudsman may publish a notice about an investigation report in a newspaper or other broadcast/electronic media. Any decision to publish such a notice must take account of the public interest, the interests of the person aggrieved and any other persons the Ombudsman thinks appropriate (see section 34L(4)). The notice may (amongst other things) include the matters specified in section 34L(2). The provider to whom the report relates must reimburse the Ombudsman for the reasonable costs of arranging the publication of the notice, if requested to do so by the Ombudsman.
555.Section 34M provides that if, following an investigation, the Ombudsman reports (under section 34K) that the person aggrieved has sustained injustice or hardship as a consequence of the action investigated, the provider concerned must consider the Ombudsman’s report and notify him/her of the action that the provider has taken or proposes to take in response and also of the time within which such action will be taken. The provider concerned must make the notification within one month starting on the day the provider receives the report or such longer period as the Ombudsman in his/her discretion specifies.
556.Section 34N provides that the full reporting procedure under sections 34K to 34M does not apply if the Ombudsman decides to report under the alternative procedure set out in this section. If, after an investigation, the Ombudsman concludes that the person aggrieved:
has not sustained injustice or hardship as a consequence of the action investigated; or
has sustained such injustice or hardship and the provider to whom the complaint relates agrees within the permitted period (as defined in section 34N(3)) to implement the Ombudsman’s recommendations,
then the Ombudsman may decide to report under the alternative procedure under section 34N. However, the Ombudsman may do so only if he/she is satisfied that the public interest does not require him/her to report under the full reporting procedure set out in sections 34K to 34M.
557.A report under the alternative procedure in this section is subject to similar restrictions with respect to naming or identifying individuals to those which apply to a report under section 34K (section 34N(9) and (10)).
558.Under section 34O, the Ombudsman may issue a special report in three cases:
The Ombudsman has concluded in an investigation report that the person has sustained injustice or hardship as a result of the matter investigated but:
the Ombudsman has not been notified by the provider, in accordance with section 34M (Action following receipt of investigation reports), about the action that the provider has taken/proposes to take, or about the period within which when any proposed action is to be taken, or
the Ombudsman, having been notified about such matters in accordance with section 34M, is not satisfied with the action/proposed action or the period within which it is to be taken, or is not satisfied that the action has been taken before the end of the permitted period.
The Ombudsman has prepared a report under section 34N(2) (Alternative procedure) and is not satisfied that the provider has implemented his or her recommendations within the permitted period; and
The Ombudsman has concluded, in resolving a complaint under section 34C (alternative resolution of complaints), that the person aggrieved has sustained injustice or hardship, the provider has agreed to take particular action and the Ombudsman is not satisfied that the provider has taken that action before the end of the permitted period.
559.Section 34P(1) requires the Ombudsman to set out, in a special report, the facts that entitle him/her to prepare the report and to make whatever recommendations that he or she thinks appropriate, with respect to the action he/she thinks should be taken to remedy the injustice or hardship suffered by the person aggrieved, and to prevent similar injustice or hardship being caused again. Sections 34P(2) and (3) set out the persons to whom the special report must be sent. The requirements that apply where the Ombudsman previously considered the matter in a full report under section 34K differ from those that apply where he/she previously considered the matter under the alternative procedure under section 34N or by means of an alternative resolution process under section 34C.
560.Sections 34P(4) to (10) makes further provision with regard to special reports. In particular, a special report is subject to similar restrictions with respect of naming or identifying individuals to those which apply to a report under section 34K.
561.Section 34Q provides the Ombudsman with the power to publish a notice about a special report in a newspaper or by means of broadcast and electronic media. In determining whether to publish, the Ombudsman must take into account the public interest, the interests of the person aggrieved and the interests of any other person the Ombudsman considers appropriate. A provider to whom a report relates must, if requested to do so by the Ombudsman, reimburse the Ombudsman for the reasonable costs of arranging publication. If a provider fails to do so, the Ombudsman may recover these costs as a civil debt.
562.Section 34R provides definitions of “care home” and “care home provider” by reference to the Care Standards Act 2000 (see sections 3 and 121(9) of that Act for the definition of a care home). It also provides that a care home provider’s actions include actions taken by the provider’s staff and others acting on the provider’s behalf.
563.Section 34S provides definitions of “domiciliary care” and “domiciliary care provider”. It also provides that a domiciliary care provider’s actions include actions taken by the provider’s staff and others acting on the provider’s behalf.
564.Section 34T provides definitions of “palliative care service” and “independent palliative care provider”. The term “palliative care” is not defined. However, it is generally used to describe the alleviation of pain of those with terminal conditions, the relief of pain without dealing with the cause of the condition and the general improvement in the quality of life of persons with life limiting conditions. Life limiting conditions are normally described as those in which a person’s life expectancy is likely to be shortened as a result of a condition or illness.
565.In deciding whether a particular form of care amounts to palliative care or not, it is anticipated that the Ombudsman will give some weight to the definition of “palliative care” that is used by the World Health Organisation. This definition provides that “palliative care is an approach that improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual”. Weight is also likely to be given to the National Institute for Clinical Excellence (NICE) definition, which provides that “palliative care is the active holistic care of patients with advanced progressive illness. Management of pain and other symptoms and provision of psychological, social and spiritual support is paramount. The goal of palliative care is achievement of the best quality of life for patients and their families. Many aspects of palliative care are also applicable earlier in the course of the illness in conjunction with other treatments”.
566.A palliative care service is a service the main purpose of which is to provide palliative care. The term is therefore not intended to cover services that provide a degree of palliative care but where such care is incidental to the main service being provided. It is intended, however, to capture a wide range of palliative care services ranging from community based services to palliative care hospitals. Section 34T provides that an independent palliative care provider’s actions include actions taken by the provider’s staff and others acting on the provider’s behalf.
567.Part 2B applies to complaints made under Part 2 of the 2005 Act (complaints relating to listed authorities), as well as to complaints made under Part 2A of that Act (complaints relating to other persons about social care and palliative care). Part 2B re-states, with minor modifications, the provision formerly contained in sections 25 to 27 and 32 of the 2005 Act.
568.Section 34U(1) and (2) requires the Ombudsman to consult another specified ombudsman whenever he/she thinks that a complaint is about a matter that could be the subject of investigation by that other ombudsman. The other ombudsmen that the Ombudsman is required to consult are specified in section 34U(7). There is power for the Welsh Ministers, by order, to amend this list of specified ombudsmen.
569.Where the Ombudsman is required to consult with another ombudsman on a matter, he/he may also co-operate with that other ombudsman on that matter (section (34U (3)). The consultation and co-operation may extend to anything relating to the matter. Examples of matters on which there may be consultation and co-operation are set out in section 34U(4), namely:
how an investigation into the complaint should be conducted; and
the form, content and publication of a report following an investigation.
570.Sections 34U(5) and (6) provides that, where such consultation takes place, the Ombudsman and any of the specified ombudsmen (other than the Scottish Public Services Ombudsman) can conduct joint investigations and publish joint reports.
571.In cases of consultation on a complaint, the Ombudsman will be able to use his/her supplementary powers in paragraph 21 of Schedule 1 to the 2005 Act to forward a copy of the complaint to the other ombudsman. Furthermore, the Ombudsman will be able to use those supplementary powers to inform the person who has made the complaint how he or she can make a complaint to the other ombudsman.
572.Section 34V deals with situations where the Ombudsman, when dealing with a complaint, identifies matters which could be subject to examination by the Commissioner for Older People in Wales or the Welsh Language Commissioner. It requires the Ombudsman to inform and consult the Commissioner for Older People in Wales about the matter and allows the Ombudsman to inform and consult the Welsh Language Commissioner similarly. The Ombudsman and the relevant Commissioner may then co-operate, and conduct a joint investigation, and prepare a joint report about the matter.
573.Section 34W contains further provision about collaborative working between the Ombudsman and , the Commissioner for Older People in Wales and the Welsh Language Commissioner where complaints raise matters (referred to as “connected matters”) that could be dealt with by the Ombudsman or by the respective Commissioners.
574.Section 34X provides that information obtained from other ombudsmen or commissioners in relation to, or in connection with, complaints is to be kept confidential except in limited circumstances. Section 34X(2) sets out the circumstances in which such information may be disclosed.
575.Section 34X(6) provides that neither the Ombudsman nor a member of his/her staff or other person acting on his/her behalf or assisting him/her can be required to give evidence in any proceedings (except proceedings specified in section 34X (2)) about:
information obtained to assist the Ombudsman in deciding whether to investigate a complaint, during the investigation of a complaint or in resolving a complaint; or
information obtained from another ombudsman in consulting and co-operating with that Ombudsman.
576.Section 34Y(1) provides that a Minister of the Crown may give notice to the Ombudsman that disclosure of any document or information or class of document or information specified in the notice would, in the opinion of the Minister, be prejudicial to the safety of the United Kingdom or otherwise contrary to the public interest. Where such a notice is given, this Act neither authorises nor requires the Ombudsman, a member of his/her staff or any other person acting on his/her behalf or assisting him/her, to disclose such specified information.
577.Where the Ombudsman or a member of his/her staff etc. is obliged by virtue of some other legal requirement to disclose the information then nothing in this section prevents that person from complying with that obligation.
578.Section 34Z provides that the following are absolutely privileged for the purposes of defamation, namely:
the publication (which will bear its usual meaning within the law relating to defamation) of any matter by the Ombudsman, a member of his/her staff or another person acting on his/her behalf or assisting him/her in the discharge of his/her functions under the 2005 Act;
the publication of any matter in any report published by a person in the discharge of its functions under section 17 of the 2005 Act (Requirement on listed authorities to publish the Ombudsman’s report of an investigation); and
the publication of a matter in connection with a complaint made or referred to the Ombudsman under the 2005 Act, where that matter is published in one of the following communications:
communications between a listed authority as specified in section 28 and Schedule 3 of the 2005 Act (including a member or co-opted member, officer or member of staff or another person acting on behalf of or assisting in the discharge of the functions of that authority) and the Ombudsman (or his/her staff or persons acting on his/her behalf or assisting him/her in the discharge of his/her functions);
communications between a care home provider, domiciliary care provider or independent palliative care provider, (including an officer or member of staff or another person acting on behalf of or assisting in the discharge of the functions of that provider) and the Ombudsman (or his/her staff or persons acting on his/her behalf or assisting him/her in the discharge of his/her functions);
communications between the person aggrieved or the person making the complaint on behalf of the person aggrieved and an elected member of the National Assembly for Wales; and
communications between the person aggrieved or the person making the complaint on behalf of the person aggrieved and the Ombudsman (or his staff, persons acting on his behalf or assisting him in the discharge of his functions).
579.This provision generally replicates similar protection under the legislation relating to other ombudsmen.
580.Paragraph 3 of the Schedule to this Act makes transitional provision so that the provisions of section 34V and 34W of the 2005 Act do not apply in relation to the Welsh Language Commissioner before the Commissioner’s functions under Part 5 of Welsh Language (Wales) Measure 2011 are in force.
581.Paragraph 4 of the Schedule inserts a new Schedule into the 2005 Act. This new Schedule (Schedule 3A) sets out matters which the Ombudsman is prohibited from investigating under Part 2A of the 2005 Act.
582.Paragraphs 5 to 36 of the Schedule make consequential changes to the 2005 Act and related legislation.
