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Health Act 2009

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.

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