160.Section 42 sets out the three matters to which Part 5 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.
161.Part 5 does not apply to complaints which may be dealt with under Part 3 or to matters described in Schedule 4 (matters excluded from the Ombudsman’s jurisdiction). The Welsh Ministers may by regulations amend Schedule 4 but must consult the Ombudsman before doing so.
162.The terms used in this section are defined in sections 62 to 64.
163.This Schedule makes provision as to matters that are excluded from the Ombudsman’s jurisdiction.
164.Section 43 permits the Ombudsman to investigate a complaint relating to a matter to which Part 5 applies only if:
the complaint has been duly made or referred to the Ombudsman; and
in the case of complaints about independent palliative care providers, that the independent palliative care provider has received public funding within three years preceding the date of the action to which the complaint relates.
165.“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.
166.Sections 43(4) and 48(1) set out the requirements which must be in order for a complaint to be duly made to the Ombudsman. Section 43(5) and section 49(1) set out the requirements which must be met in order for a complaint to be duly referred to the Ombudsman by a provider to whom it relates.
167.Section 43(7) enables the Ombudsman to investigate a complaint, which the Ombudsman is entitled to investigate under Part 5, 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.
168.Section 43(8) provides the Ombudsman with a wide discretion as to whether to begin, continue or discontinue an investigation. Section 43(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 that person has subsequently withdrawn the ‘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.
169.Section 44 allows the Ombudsman to initiate an investigation into a matter to which Part 5 applies, whether the Ombudsman has received a complaint or not.
170.This has a significant effect on the interpretation of the Act – when the word “investigation” is used in Part 5, it can mean either an investigation under section 43 or an investigation under section 44. For example, section 53 applies “for the purposes of an investigation under this Part”. Therefore, section 53 applies in relation to an investigation into a complaint under section 43 and an own initiative investigation under section 44.
171.The power in section 44 can only be used to investigate matters the Ombudsman is entitled to investigate under Part 5. Section 42 sets out those matters.
172.Section 44(3) sets out requirements that must be met before the Ombudsman can begin an own initiative investigation. The requirements are:
the Ombudsman must have regard to whether it is in the public interest to begin an own initiative investigation;
the Ombudsman must have a reasonable suspicion that there is systemic maladministration;
the Ombudsman must consult such persons as the Ombudsman thinks appropriate; and
the Ombudsman must have regard to the own initiative criteria published under section 45.
173.Section 45 requires the Ombudsman to publish the criteria that the Ombudsman will use when deciding whether to carry out an own initiative investigation under Part 5 (and under section 44(3)(d), the Ombudsman must have regard to these criteria before beginning an own initiative investigation).
174.Before publishing the first criteria, the Ombudsman must lay a draft of the criteria before the Assembly. The draft criteria will be subject to a negative resolution procedure. This means that the Assembly has 40 days to object to the criteria. If the Assembly does not object within those 40 days, the Ombudsman must publish the criteria in the form of the draft laid before the Assembly. If the Assembly resolves not to approve the draft criteria, section 45(3) prohibits the Ombudsman from publishing the criteria in the form of the draft but section 45(6) clarifies that the provisions of section 45(3) do not prevent the Ombudsman from laying new draft criteria before the Assembly.
175.Once the criteria have been published, the Ombudsman can revise and republish the criteria. But if a revision makes any material changes to the criteria, then the draft revision must be laid before the Assembly and the negative resolution procedure will apply to the draft revisions it applied to the draft criteria.
176.The Welsh Ministers may make regulations to amend the criteria. Such regulations follow an affirmative resolution procedure. This means the regulations must be approved by the Assembly – if the Assembly does not approve the regulations then they do not take effect. But if the Assembly does approve the regulations, the Ombudsman must update the published criteria to reflect the changes made by the regulations.
177.Both the Ombudsman and the Welsh Ministers must consult before proposing criteria (or proposing material changes to criteria) under this section.
178.Section 46 provides the Ombudsman with a wide power to take steps to resolve matters under Part 5 without proceeding to formal investigation. The power is available to the Ombudsman to use instead of, or in addition to, the power to investigate.
179.Section 47 makes similar provision to section 7 of this Act. It lists the persons who may make a complaint to the Ombudsman under Part 5 of this Act.
180.Section 47 prescribes the persons from whom the Ombudsman may accept a complaint. Those persons are;
a member of the public who claims, or has claimed to have sustained injustice or hardship in consequence of the matters the Ombudsman is entitled to investigate under Part 5. This person is described as the person aggrieved,
a person authorised, in writing, by the person aggrieved to make the complaint on their behalf, or
where the person aggrieved cannot give such authorisation, a person the Ombudsman considers appropriate.
181.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. Section 47(2) excludes person acting in certain capacities from the definition of “member of the public” for the purposes of this section, for example a person acting in their capacity as a care home provider. However, this does not prevent such a person from making a complaint, provided the person is making the complaint in their personal capacity.
182.The Ombudsman has the power to decide whether the requirements of section 47 have been met in a particular case.
183.If a person wishes to make a complaint to the Ombudsman, the complaint must satisfy the requirements of section 48(1) (though the Ombudsman has discretion under section 43(7) to investigate matters where these requirements are not met).
184.Section 48(1) provides that in order for a complaint to meet the requirements of section 43(4)(c), it must be in a form specified by the Ombudsman and must contain the information specified by the Ombudsman. The complaint must also be made within 1 year of date when the person aggrieved first had notice of the matter which is the subject of the complaint. The form and content will be specified in guidance published by the Ombudsman.
185.Section 48(4) provides for circumstances where a complaint is made other than in writing (for example, a complaint made orally or in British Sign Language), Subsections (4) to (7) set out additional requirements for complaints made other than in writing. This includes explaining to the person what it means for a complaint to be duly made (i.e. that when a complaint is duly made, it could lead to the Ombudsman beginning an investigation), and checking with the person whether they wish the complaint to continue to be one that is duly made.
186.If the person does not wish the complaint to be treated as one that is duly made, then the Ombudsman cannot begin a section 43 investigation into the matter (but if the Ombudsman has already begun an investigation into the matter and the person subsequently withdraws the oral complaint, the Ombudsman has discretion as to whether to continue the investigation).
187.Where a person has confirmed that they do not wish a complaint to continue to be treated as duly made the Ombudsman can nonetheless investigate the matter under the own initiative power in section 44 if the requirements of that section are met.
188.This section sets out the requirements that must be met in order for a complaint to be duly referred within the meaning of section 43(5)(b). A provider can refer a complaint to the Ombudsman only if it is made by a person who would have been entitled to make that complaint directly to the Ombudsman undersection 47.
189.The complaint must have been made to the provider within a year from the day that the person aggrieved first had notice of the matter complained of. The referral by the provider to the Ombudsman must also occur before the end of one year beginning on the day on which the complaint was made to the provider.
190.In addition, the referral must be in whatever form, and contain whatever information, the Ombudsman specifies in guidance published under section 48(2). Therefore, providers who wish to refer a complaint should read that guidance in order to help them make the referral.
191.Under section 43(7) the Ombudsman has discretion to investigate a compliant even where either (or both) of the time limits are not met, or where the referral is not in the required form or does not contain the required information.
192.Section 50 requires the Ombudsman to keep a register of all complaints made or referred to the Ombudsman that the Ombudsman is entitled to investigate under Part 5.
193.This register must include all written complaints (including complaints made in electronic form) and all complaints made other than in writing, (including those made orally_.
194.Section 51 provides that the Ombudsman must prepare a statement of reasons in relation to any decision by the Ombudsman not to begin, or to discontinue, an investigation into a complaint or an own initiative investigation in relation to which the Ombudsman has consulted a person under section 44(3)(c).
195.Such a decision may be made, for example, where the Ombudsman has resolved a matter through alternative means under section 46 and has therefore decided not to undertake a formal investigation.
196.Under section 51(2), the Ombudsman must send a copy of that statement to:
any person who made a complaint to the Ombudsman; and
the provider to whom the matter relates.
197.Under section 51(3) the Ombudsman may also send a copy of the statement to any other person the Ombudsman considers appropriate.
198.The Ombudsman may publish such a statement if the Ombudsman considers that it is in the public interest to do so. In reaching this view, the Ombudsman must take account of the interests of the person aggrieved (if any) and any other persons the Ombudsman thinks appropriate.
199.Sections 51(7) and (8) prohibit the Ombudsman from sending out or publishing a statement that:
names any person (other than the provider to whom the matter 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.
200.This prohibition does not apply in relation to the version of the statement sent to the person aggrieved (if any).
201.Section 52(1) sets out the requirements for investigations under section 43 (i.e. investigations following a complaint).
202.Sections 52(2) to 51(7) set out the requirements for investigations under section 44 (i.e. investigations carried out on the Ombudsman’s own initiative), which include a requirement for the Ombudsman to prepare an ‘investigation proposal’ and to send the investigation proposal to the provider being investigated and any person identified in the investigation proposal in a negative way. The Ombudsman must also give the provider and other persons opportunity to comment on the investigation.
203.But the Ombudsman does not have to prepare an investigation proposal in the circumstances set out in section 52(3) and (4). This means that if the Ombudsman has begun investigating a matter (either in response to a complaint under section 43 or using the own initiative power under section 44), referred to as “the original investigation” and the Ombudsman has subsequently begun an investigation into a matter under section 44 that has a substantial connection with the original investigation, referred to as the related investigation, then the Ombudsman does not have to prepare an investigation proposal in relation to the related investigation.
204.However, even if the Ombudsman does not have to prepare an investigation proposal, section 52(6) still requires the Ombudsman to bring the investigation to the attention of those being investigated and give them an opportunity to comment.
205.Under section 52(7), an investigation proposal must set out the reasons for the investigation and how the section 45 criteria have been met (i.e. the criteria for own initiative investigations).
206.Section 52(8) requires all investigations to be conducted in private.
207.Section 52(9) provides that, subject to the other requirements set out in this 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 could, in any particular case, depart from any such established procedures if the Ombudsman considered it appropriate.
208.Section 52(10)(a) provides that the Ombudsman may make such inquiries as the Ombudsman thinks appropriate. Section 52(10)(b) provides that it is for the Ombudsman to decide whether a person may be legally represented or be represented in some other way (e.g. by an independent advocate).
209.Section 52(12) empowers the Ombudsman to make payments towards the expenses of persons assisting the Ombudsman in an investigation, provided that 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.
210.Section 52(14) requires the Ombudsman to publish the procedures for investigations under sections 43 and 44.
211.Section 53 confers wide powers on the Ombudsman to require the production of information or documents in relation to an investigation (section 53(2) and (3)) and to require certain persons to provide any facilities that the Ombudsman may reasonably require (section 53(4)). The latter power may be exercised, for example, to require the provision of certain computer hardware or software to enable the Ombudsman to view documents or information that have been provided.
212.The Ombudsman has the same powers as the High Court in relation to the taking of evidence from witnesses and production of documents (section 53(3)).
213.Section 53(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.
214.Section 53(6) disapplies any privilege which the Crown would otherwise be able to claim as a basis for withholding evidence or documents.
215.The effect of section 53(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 53(5).
216.Sections 54(1) and (2) enable the Ombudsman to certify to the High Court that, in the Ombudsman’s opinion, a person has without lawful excuse obstructed the Ombudsman (or a member of the Ombudsman’s staff) in the discharge of functions under Part 5 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.
217.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 that person had committed contempt in relation to the High Court (section 54(4)).
218.This section applies to investigations under Part 5 unless section 58 applies.
219.Section 55(2) provides that after conducting an investigation the Ombudsman must prepare and send a report on the findings to the appropriate person, unless the alternative procedure under section 58 applies.
220.Section 55(3) specifies those persons to whom a report must be sent. The Ombudsman may also send a copy of the report to any other persons the Ombudsman thinks appropriate.
221.The Ombudsman may publish the report if the Ombudsman considers that it is in the public interest to do so. In reaching this view, the Ombudsman must have regard to the interests of the person aggrieved (if any) and any other persons the Ombudsman thinks appropriate.
222.Sections 55(8) and (9) prohibit the Ombudsman from sending or publishing a report that:
names any person (other than the provider to whom the report 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.
223.This prohibition does not apply in relation to the version of the report that is sent to the person aggrieved (if any) or the Welsh Ministers. In reaching a 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 (if any) and any other persons the Ombudsman thinks appropriate.
224.Section 56 provides that 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 (if any) and any other persons the Ombudsman thinks appropriate (see section 56(4)).
225.The notice may (amongst other things) include the matters specified in section 56(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.
226.Section 57 provides that if, following an investigation, the Ombudsman reports (under section 55) that any person has sustained injustice or hardship as a consequence of the matter investigated, the provider concerned must consider the Ombudsman’s report and notify the Ombudsman 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.
227.The provider must give the notification within one month of receiving the report or such longer period as the Ombudsman specifies.
228.Section 58 provides that the full reporting procedure under sections 55 to 57 does not apply if the Ombudsman decides to report under the alternative procedure set out in this section.
229.The Ombudsman may apply the alternative procedure where the Ombudsman is satisfied that:
no person has sustained, or is likely to sustain, injustice or hardship as a consequence of the action investigated; or
a person has sustained, or is likely to sustain, such injustice or hardship and
the provider to whom the matter relates agrees within the permitted period (as defined in section 58(3)) to implement the Ombudsman’s recommendations.
230.Where the Ombudsman is satisfied that these conditions are met the Ombudsman may decide to report under the alternative procedure under section 58. However, the Ombudsman may do so only if the Ombudsman is satisfied that the public interest does not require a report under the full reporting procedure set out in sections 55 to 57.
231.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 55 (section 58(9) and (10)).
232.Under section 59, the Ombudsman may issue a special report in three cases:
233.Case 1. The Ombudsman has concluded in an investigation report that the person has sustained injustice or hardship (or a person is likely to sustain such injustice or hardship) as a result of the matter investigated but:
the Ombudsman has not been notified by the provider, in accordance with section 57 (Action following receipt of investigation reports), about the action that the provider has taken/proposes to take, or about the period within which any proposed action is to be taken, or
the Ombudsman, having been notified about such matters in accordance with section 57, 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.
234.Case 2. The Ombudsman has prepared a report under section 58(2) (alternative procedure) and is not satisfied that the provider has implemented the recommendations within the permitted period; and
235.Case 3. The Ombudsman has concluded, in resolving a matter under section 46 (alternative resolution of matters), that any person has sustained (or is likely to sustain) 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.
236.Section 60(1) requires the Ombudsman to set out, in a special report, the facts that entitle the Ombudsman to prepare the report and to make whatever recommendations that the Ombudsman thinks appropriate, with respect to the action the Ombudsman thinks should be taken to remedy the injustice or hardship suffered by the person, and to prevent similar injustice or hardship being caused again.
237.Sections 60(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 55 differ from those that apply where the Ombudsman previously considered the matter under the alternative procedure under section 58 or by means of an alternative resolution process under section 46.
238.Sections 60(4) to (9) 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 55.
239.Section 61 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.
240.In determining whether to publish a notice about a special report in accordance with section 60(1), the Ombudsman must take into account the public interest, the interests of the person aggrieved (if any) 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.
241.Section 62 provides definitions of “care”, “care home” and “care home provider” by reference to Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016. 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.
242.Section 63 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.
243.Section 64 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.
244.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”.
245.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 64 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.