Schedule 5: Investigation of complaints about privately arranged or funded adult social care
Section 34A: Interpretation: “adult social care provider” and “adult social care”
323.Section 34A defines the terms “adult social care” and “adult social care provider” for the purposes of delineating the matters subject to investigation under the new scheme (set out in section 34B). The meaning of “adult social care” is defined by reference to Part 1 of the Health and Social Care Act 2008 (the 2008 Act). Section 9 of that Act states that social care “includes all forms of personal care and other practical assistance provided for individuals who by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs, or any other similar circumstance, are in need of such care or other assistance”. Such care falls within the scope of the new scheme if it is provided to persons aged 18 or over.
324.“Adult social care provider” is defined in subsection (3). Only persons providing adult social care which is a regulated activity within the meaning of Part 1 of the 2008 Act will be “adult social care providers” for the purposes of the new scheme. Section 8 of the 2008 Act allows for regulated activities to be prescribed in regulations made under that Act. Only activities that are prescribed will be regulated by the Care Quality Commission. If a service is not regulated by the Care Quality Commission it will not fall within the Local Commissioners’ remit. It is the Government’s intention to prescribe, for example, that provision of care home accomodation and the care provided to residents in a home will be regulated by the Care Quality Commission. Therefore a provider of these types of activity would come within the Local Commissioners’ remit.
325.Subsections (4) and (5) provide that action taken on behalf of a provider will be treated as action by the service provider whether this is action taken by an employee, by a person with whom the provider has contracted to provide the service, or (subsection (5)) where the care is provided by means of a less formal arrangement with another person. The intention of these two subsections is to ensure that complaints about social care provided under any arrangements where the provider has delegated the service remain within the Local Commissioners’ remit.
Section 34B: Power to investigate and Schedule 5A: Matters not subject to investigation
326.Section 34B sets out the matters that a Local Commissioner may investigate and the conditions that need to be satisfied before an investigation can take place. A Local Commissioner may investigate any matter relating to action taken by an adult social care provider in connection with the provision of adult social care. So as explained above, the new scheme is limited to complaints about adult social care which is regulated by the Care Quality Commission.
327.Schedule 5A (inserted by paragraph 3 of Schedule 5) sets out matters which are not subject to investigation under the new scheme. Complaints about social care that already fall within the local authority statutory complaints procedure are excluded since these can be investigated by a Local Commissioner under the existing procedure in Part 3 of the 1974 Act. Complaints about NHS services (which may involve the provision of social care) are also excluded since these are for investigation by the Health Service Commissioner under the 1993 Act.
328.Section 34B(1)(b) requires one of two conditions to be met before an investigation can take place. Either a complaint has to have been made by someone who can complain (see section 34C) and in accordance with the procedure for making a complaint (set out in section 34D) or the matter has come to the attention of a Local Commissioner and in accordance with section 34E may be treated as though a complaint about the matter had been made directly.
329.Before proceeding to investigate a matter, a Local Commissioner must be satisfied either that the provider has had notice of the matter complained about and an opportunity to investigate and respond, or that it is not reasonable in the circumstances to expect the matter to be brought to the notice of the provider (subsection (6)). A Local Commissioner is able to use discretion to take a flexible approach and proceed with an investigation, if satisfied that it is not reasonable to expect the matter complained about to have first been brought to the attention of the service provider or investigated by the provider. The Government expects that in the majority of cases the complainant would raise the complaint with the provider first, but the scheme allows a person to take the matter up directly with a Local Commissioner. This is because of the vulnerable nature of this group of service users, and allows for the possibility that a person might feel unable, through fear of reprisal or for some other reason, to take up the matter with the provider.
Section 34C: Who can complain and section 34D: Procedure for making complaints
330.Section 34C provides for the scheme to apply to members of the public who claim to have sustained injustice because of the service provider’s action. It also allows someone to act on a person’s behalf in making the complaint. Section 34D requires complaints to be made in writing. Complaints must be made within 12 months of the complainant first having notice of the matter in question, or, if the person affected has died without having notice of the matter, within 12 months of the person’s representatives (or such other person who is making the complaint) having had notice of it. A Local Commissioner may disapply these requirements. For example, the requirement for the complaint to be made in writing may be disapplied where a complaint is made orally where the service user’s particular circumstances make it difficult for them to put the complaint in writing. A Local Commissioner might also wish to disapply the 12-month time limit where the circumstances of the person affected have made it difficult for them or their representatives to raise the matter within that period.
Section 34E: Matters coming to attention of Local Commissioner
331.Under section 34E, matters that come to the attention of a Local Commissioner, without being raised by the person affected or his or her representatives, can be treated as though a complaint had been made about them directly. A Local Commissioner may investigate matters as though they had been raised by a complaint if they become aware of the matters either during an investigation under the existing scheme relating to local authorities (under Part 3 of the 1974 Act) or during an investigation of another matter under the new scheme. A Local Commissioner may only investigate a matter if it appears that a member of the public has or may have suffered injustice in consequence of the matter. The matter must also have come to the attention of the Local Commissioner before the person affected or their representatives have had notice of the matter, or within a permitted period of 12 months, although in the same way as in section 34D, the Local Commissioner may disapply the 12-month time limit.
Section 34F: Procedure in respect of investigations
332.Section 34F deals with the procedure for conducting an investigation. The adult social care provider concerned, and anyone alleged to have been responsible for taking or authorising the action complained about, must be allowed the opportunity to comment. This means that whoever carried out the action complained about, whether this is the provider, or someone else who has carried out the action on behalf of the provider, that person must be given an opportunity to comment. Investigations must be conducted in private. But otherwise it is for the Local Commissioner to decide how to conduct the investigation. The Local Commissioner may obtain information and make enquiries from any person as they see fit under subsection (4).
Section 34G: Investigations: further provisions
333.Section 34G gives a Local Commissioner various powers in order to facilitate their investigations. The Local Commissioner may require the adult social care provider, or any other person who in the Commissioner’s opinion is able to provide information or documents relevant to the investigation, to provide such information or documents. For example, a local authority or the Care Quality Commission may have information or documents relevant to an investigation under Part 3A.
334.The Local Commissioner has the same powers as the High Court to compel the attendance and examination of witnesses and the production of documents. This means that anyone not complying with the Local Commissioner’s requests may be in contempt of court and subject to the penalties associated with that. Subsection (9) provides that if any person obstructs an investigation, or is guilty of an act or omission in relation to an investigation which would constitute contempt of court in proceedings in the High Court, the Local Commissioner may certify this as an offence to the High Court. The High Court may then deal with the person charged under subsection (9) as though they had committed the same offence in relation to the High Court.
Section 34H: Statements about investigations
335.This section provides for statements to be issued by a Local Commissioner when he or she decides not to investigate or to discontinue an investigation, and when an investigation is completed. If the Commissioner decides not to investigate or to discontinue an investigation, the statement must set out the Commissioner’s reasons for that decision.
336.When a Local Commissioner has completed an investigation, the statement must set out the Commissioner’s conclusions and any recommendations. The Commissioner may make recommendations for action which, in the Commissioner’s opinion, the adult social care provider needs to take to remedy any injustice sustained by the person affected. Recommendations may also be aimed at preventing injustice being caused in the future as a result of similar action of the provider. For example, the Commissioner might recommend an apology to the complainant, compensation to be paid, a refund of charges or changes to be made to the services provided (possibly relating to the service user’s facilities, accommodation, equipment) or changes to how staff are managed or trained.
337.The Commissioner must send a copy of the statement to the complainant, the provider and, if someone else took the action complained of, to that person. The statement must identify the provider concerned unless the provider is an individual or doing so would identify an individual. It will then be for the Local Commissioner to decide whether it is appropriate for the individual to be identified. The statement must not identify the complainant or any other person (other than the provider) unless the Commissioner considers it necessary to identify that person.
338.The Local Commissioner may also send copies of the statement to the Care Quality Commission and any local authority. For example it is likely that this would occur in all cases where the statement draws attention to failings in the safety of services, or where there are implications for many service users, not only the person who has complained.
Section 34I: Adverse findings notices
339.Section 34I requires providers to consider any statement containing recommendations by a Local Commissioner and notify the Commissioner within the “required period” – one month of receiving the statement (or any longer period agreed in writing by the Local Commissioner) – of the action which the provider has taken or proposes to take. If by the end of that period, the Local Commissioner has not received this notification, or is satisfied before the period expires that the provider has decided to take no action, the Local Commissioner may require a provider to publish an adverse findings notice. The Commissioner may also do this in two other circumstances: firstly, if not satisfied with the action which the provider has taken or proposes to take; or secondly, if, after a further month following the end of the “required period” (or any longer period agreed in writing by the Local Commissioner), the Commissioner has not received satisfactory confirmation that the provider has taken the proposed action.
340.Subsection (4) provides that an adverse findings notice, in a form agreed between the provider and a Local Commissioner, should include details of any action recommended in the Local Commissioner’s statement which the provider has not taken, any supporting material required by the Local Commissioner, and an explanation of the provider’s reasons for not having taken the recommended action (if the provider wishes). The adverse findings notice must be published by the provider in a manner directed by the Local Commissioner. The Local Commissioner might for example, require publication in a local newspaper or, if the provider has an internet site, on that site.
341.Under subsection (6), a Local Commissioner must publish an adverse findings notice if the provider fails to do so in accordance with subsections (4) and (5), or cannot agree the form of the notice with the Local Commissioner within one month of the date the notice was received (or longer if agreed in writing by the Local Commissioner). Subsection (7) requires the provider to reimburse the LGO on demand any reasonable expenses incurred by the Local Commissioner in performing the duty under subsection (6).
Section 34J: Publication of statements etc. by Local Commissioner
342.This section deals with the publication of statements or adverse findings notices. A Local Commissioner may publish all or part of a statement, further publish an adverse findings notice or publish a summary of a statement or adverse findings notice. In deciding whether to publish a statement the Commissioner must take into account the public interest as well as the interests of the complainant and of other persons. The Local Commissioner may also supply a copy of all or part of a statement or adverse findings notice to anyone who requests it, and charge a reasonable fee for this. Subsections (8) and (9) of section 34H apply to a Local Commissioner’s publication of a statement or supply of any copy under this section. That means that, for example, the summary must not identify the complainant or any other person (other than the provider) unless the Commissioner considers it necessary to identify that person.
Section 34K: Disclosure of information
343.Section 34K restricts the disclosure by a Local Commissioner of information obtained during the course of an investigation. Information obtained must not be disclosed except for the purposes specified. Particular exemptions allowing disclosure of information include, for example, disclosure for the purposes of investigations and statements related to investigations under Part 3 or 3A of the 1974 Act, or for the purposes of a complaint being investigated by the Parliamentary Commissioner or the Health Service Commissioner.
Section 34L: Law of defamation
344.Section 34L confers absolute privilege for the purposes of the law of defamation on certain communications between a Local Commissioner and other parties and certain publications by a Local Commissioner. This means that these communications and publications are not actionable for slander or libel.
345.Communications between a Local Commissioner and an adult social care provider will be privileged. The publication of any matter by a Local Commissioner in communications with a complainant, the Parliamentary Commissioner, the Health Service Commissioner, a local authority or the Care Quality Commission will also be privileged. Privilege will also apply to the publication of statements, adverse finding notices, summaries and reports by a Local Commissioner.
Section 34M: Consultation with other Commissioners
346.Under section 34M, if a Local Commissioner thinks that any matters which are the subject of the investigation include a matter that is potentially, or actually, the subject of another Ombudsman’s investigation, the Commissioner is required to consult with that other Ombudsman. The other Ombudsmen this applies to are the Parliamentary Commissioner, the Health Service Commissioner, the Public Services Ombudsman for Wales, and the Scottish Public Services Ombudsman. Subsection (5) imposes a similar obligation on the Parliamentary Commissioner. If the Parliamentary Commissioner is conducting an investigation and considers that the complaint relates partly to a matter which could be the subject of investigation by a Local Commissioner, then they must consult with the Local Commissioner. (A similar obligation is placed on the Health Service Commissioner under the 1993 Act).
Section 34N: Collaborative working with other Commissioners
347.Section 34N applies if a Local Commissioner in conducting an investigation considers that the investigation raises a matter which could be the subject of investigation by the Parliamentary Commissioner or the Health Service Commissioner. A Local Commissioner may then, if the complainant consents, carry out a joint investigation with the Parliamentary Commissioner or the Health Service Commissioner, or both. Under subsection (3) a Local Commissioner may similarly collaborate in the investigation of a complaint being investigated by the Parliamentary Commissioner or Health Service Commissioner.
Section 34O: Disclosure of information by Local Commissioner to Information Commissioner and Section 34P: Disclosure of information by Local Commissioner to Care Quality Commission
348.Sections 34O and 34P allow a Local Commissioner to disclose to the Information Commissioner, or the Care Quality Commission, information that a Local Commissioner receives as result of an investigation that may be relevant to the carrying out of the functions of those organisations. The disclosure of information to the Care Quality Commission enables a direct link to be made between a Local Commissioner’s investigation and the regulation of the provider whose services have been the subject of that investigation. Under section 20 of the 2008 Act, the Secretary of State may impose requirements on regulated activities (as carried out by service providers) through regulations. The Care Quality Commission will determine whether the regulatory requirements have been complied with, and information from a Local Commissioner would be an indicator of potential non-compliance on which the Care Quality Commission would be able to act.
Section 34R: Review, recommendations, advice and guidance and Section 34S: Annual reports
349.Section 34R provides that a Local Commissioner must review the operation of the provisions of Part 3A of the 1974 Act (the provisions of the new scheme). The review must be carried out in the same financial year as the Commission carries out a review of the provisions of Part 3 (already required under section 23(12) of the 1974 Act) so must happen every three years. A Local Commissioner may convey any recommendations or conclusions from this review to government departments or the Care Quality Commission. A Commissioner may also provide good practice advice or guidance to adult social care providers.
350.Section 34S provides that each Local Commissioner must prepare a report on the discharge of their functions for each financial year. The Commission must then prepare an annual report which must be laid before Parliament and which must be published along with the reports from the individual Commissioners.
Section 34T: Interpretation of Part 3A
351.Section 34T defines certain terms used in Part 3A.
