20 November 2003
239.Section 113 gives the Secretary of State and the Assembly powers to make regulations about the handling and consideration of complaints.
240.Subsection (1) sets out what matters may be the subject of complaints under the regulations. It includes the provision of services by an English NHS body or cross-border Special Health Authority under a partnership arrangement made by it under section 31 of the Health Act 1999 in relation to the exercise of the health-related functions of a local authority. That section allows the NHS and local authorities to work together by enabling them to pool resources, delegate functions from one to another and enables a single provider to provide both health and local authority services. The intention is that a person receiving both health and local authority services from a health body under such an arrangement will be able to complain to that health body even if the complaint is about the local authority services which it provides.
241.Subsection (2) gives the Assembly the same power in respect of Welsh NHS bodies as the Secretary of State has in relation to English NHS bodies and cross border bodies in subsection (1).
242.By subsection (3), the regulations may provide for who may consider a complaint. It is envisaged that in both England and Wales regulations will provide that the complaint be made to the health care provider which is the subject of the complaint, where an attempt will be made to investigate and resolve the matter. If this is not possible, the second stage will involve consideration by the CHAI and by an independent lay person in England. In Wales, if further investigation under the complaints procedure is felt to be warranted, this will be conducted by an independent panel for complaints.
243.It is envisaged that the focus of the CHAI’s role in the second stage of the complaints procedure in England will be to establish the facts pertinent to a complaint in order to identify how, and by whom, the complaint is most likely to be resolved to the satisfaction of the complainant and the body or persons complained about. Following the CHAI’s assessment of an individual case, it is envisaged that it will decide what, if any, further action, and by whom, is appropriate. Options likely to be available to the CHAI include: making recommendations to the NHS body complained about in relation to further action that may be needed locally to resolve the complaint; full investigation by the CHAI, either by itself or by any independent panel established or engaged by the CHAI; referral for consideration by other agencies (for example a professional regulatory body); referral, subject to agreed criteria, for consideration by the Health Service Commissioner or no further action to be taken.
244.In Wales, it is envisaged that an independent lay person, with the benefit of independent clinical advice if necessary, will determine how a complaint that has not been dealt with to the patient’s satisfaction by the NHS body complained about, should proceed. The options open to the independent lay person are likely to include, as set out above in relation to CHAI in England, making recommendations to the NHS body in question about further action that may be taken to resolve the complaint locally; full investigation by an independent panel; referral for consideration by other agencies; referral, subject to agreed criteria, for consideration by the Health Service Commissioner; or no further action. The principal difference in the way that Wales will deal with NHS complaints is that it is not currently envisaged that there will be a role for CHAI. As set out above, it is envisaged that an independent lay person and, if convened, an independent panel will fulfil the same role in relation to NHS complaints in Wales as CHAI will in England.
245.The regulations may, by virtue of subsection (4), provide for a complaint or any matter raised by a complaint to be referred to a Health Service Commissioner for consideration as to whether to investigate the complaint under the Health Service Commissioners Act 1993, or to any other person or body, such as the police or a professional regulatory body, for them to decide whether to take any action themselves.
246.Section 114 gives regulation making powers to the Secretary of State and to the Assembly to establish procedures for making complaints about social services. These will replace the current complaints procedures set up under section 7B of the Local Authority Social Services Act 1970, which is repealed (see Schedule 14).
247.Subsections (1) and (3) respectively give to the Secretary of State (as regards England) and to the Assembly (as regards Wales) the power to make regulations which make provision about the handling and consideration of complaints about local authority social services. They set out what complaints can be considered under the regulations. This includes complaints about the provision of services by a local authority or other person under a partnership arrangement under section 31 of the Health Act 1999 in relation to the functions of an NHS body. The intention is that a person receiving both health and local authority services from a local authority under such an arrangement will be able to complain to that local authority even if the complaint is about health services which it provides.
248.Subsection (2) allows for the regulations to make provision for who will consider a complaint in England and subsection (4) allows for the regulations to make provision for who will consider a complaint in Wales. It is envisaged that in both England and Wales, the first stage of the procedure will involve a complaint being made to the local authority concerned, where an attempt will be made to resolve the matter informally. If this is not possible, the complaint may be followed up with a formal investigation. If the complaint is still not resolved satisfactorily, the second stage, involving consideration by the CSCI for complaints in England and an independent panel for complaints in Wales, will follow.
249.Subsection (5) provides for complaints, or any matter raised by a complaint, to be referred elsewhere: regulations may in particular provide for a complaint, or any matter raised by a complaint, to be referred to a Local Commissioner (under Part 3 of the Local Government Act 1974) who is a member of the Commission for Local Administration in England, or to a Local Commissioner (under Part 3 of the Local Government Act 1974) who is a member of the Commission for Local Administration in Wales. In each case it will be for the Commissioner to consider whether to investigate the complaint or matter. Otherwise the complaint, or matter raised by the complaint, may be referred to any other body so that it can decide whether to take any action.
250.Subsection (6) precludes regulations made under this section from making provision for complaints and representations capable of being made under the Children Act complaints procedure under sections 24D and 26 of that Act. The separate Children Act complaints procedure is being maintained, with provision for the further consideration of such complaints being made bysection 116.
251.Section 24D requires local authorities to establish procedures for dealing with complaints about the services provided by them under the Children Act for young people who have been looked after by them as they move towards independent living; section 26 requires local authorities to establish procedures for complaints about the discharge of their functions under Part 3 of the Children Act which is about local authority support for children and families.
252.Section 115 sets out supplementary provisions relating to both health and social care complaints regulations.
253.Subsection (2) provides for regulations to be made to specify such matters as who may make a complaint and to whom, the complaints which may or may not be made, and the procedure for making, handling and considering a complaint.
254.Subsection (3) is concerned with the making of a payment in relation to the consideration of a complaint. It is envisaged that regulations under this provision would provide for any payment to be made to CHAI or CSCI in respect of the costs incurred by it. Regulations could also provide for an amount charged in a particular case to be made subject to review by an independent panel.
255.Subsection (4) enables the regulations to make provision requiring persons or bodies handling complaints to make information available to the public about the procedures to be followed under the regulations.
256.Subsection (5) enables the regulations to authorise the production or disclosure of information or documents. Where it would not be possible owing to common law duties of confidentiality to disclose relevant information about a complaint to the body which is to consider it under the regulations, or to the body to which a complaint is to be referred for consideration under other provisions, subsection (5) allows for the regulations to make the disclosure lawful. This provision will not override the specific provisions of the Data Protection Act 1998, to the effect that information relating to an individual must not be disclosed without the consent of that individual unless it is necessary to do so for any of the reasons specified in the Act.
257.Regulations made under subsection (6) may provide for a situation in which a complaint raises matters which fall to be considered both under regulations made under section 113 or 114, and also under another complaints procedure. The regulations may provide that the complaint may be made under the regulations, and that insofar as it concerns matters falling to be considered under the other procedure, it shall be treated as having been raised in a complaint made under the other procedure (e.g. regulations may provide that a complaint may be made to an NHS body about both NHS and local authority services, and that the complaint about local authority services shall be treated as having been made under the regulations made under section 114). In this way, the complainant will be able to make his complaint to only one body, with both sets of procedures being activated. It is also envisaged that the two procedures will thereafter operate as far as possible in parallel so that for the complainant it appears as one system.
258.Section 116 inserts two new sections, 26ZA and 26ZB, into the Children Act 1989 which provide for the further consideration of complaints made under the Children Act complaints procedure that have not been resolved by the local authority concerned. Section 26ZA is concerned with complaints about local authorities in England; section 26ZB makes similar provisions for complaints about Welsh local authorities.
259.The Children Act complaints procedures is established under section 24D and section 26 of the Children Act. Section 24D requires local authorities to establish procedures for dealing with complaints about the services provided by them under the Children Act for young people who have been looked after by them as they move towards independent living; section 26 requires local authorities to establish procedures for complaints about the discharge of their functions under Part 3 of the Children Act which is about local authority support for children and families.
260.Under the current Children Act complaints procedure, if a complaint has not been resolved after consideration by the local authority and the independent person appointed to assist in the consideration of such complaints, the local authority must on the request of the complainant set up a panel that includes at least one independent person to consider the complaint. The intention is that the regulations made under section 26ZA, inserted by section 114, will replace the panel stage with a new procedure for further consideration, initially by the CSCI.
261.Section 26ZA(3) concerns payment. The intention is that any payments for the further consideration of complaints would be paid by the local authority to the CSCI. An independent panel may review the amount chargeable and substitute a lesser amount if it thinks fit.
262.By section 26ZA(4) the regulations may authorise the disclosure of information relevant to a complaint to a person or body who is considering the complaint or to a Local Commissioner, that is a Local Commissioner under Part 3 of the Local Government Act 1974 who is a member of the Commission for Local Administration in England, when a complaint is referred to him under the regulations. Such a disclosure may be authorised notwithstanding any rule of common law of confidentiality that would otherwise prohibit or restrict it. This provision will not override the specific obligations under the Data Protection Act 1998, namely, that information relating to an individual must not be disclosed without the consent of that individual unless it is necessary to do so for any of the reasons specified in the Act. This is consistent with provisions made in section 113.
263.Section 116(2) inserts section 26ZB into the Children Act 1989. It broadly replicates for Wales the provision of section 26ZA except that it makes provision for unresolved complaints to be considered further by an independent panel.
264.Section 116(3) amends 26A of the Children Act which is concerned with advocacy services. The section imposes a duty on local authorities to provide assistance, including assistance by way of representation, for children and young persons making complaints under section 24D and section 26 of the Children Act. The new section 26A(2A) extends the duty to cover the provision of assistance where complaints are further considered under sections 26ZA and 26ZB.
265.Section 117 makes provision for certain complaints about special guardianship support services to be considered under the Children Act complaints procedure. The new section 26(3C) of the Children Act 1989 extends the duty placed on local authorities by section 26(3) to establish a complaints procedure to include complaints made to the authority about the discharge by the authority of such functions under section 14F (special guardianship support services) as may be specified in regulations. The section specifies who may make such a complaint under the procedure.
266.Special guardianship orders, made under section 14A of the Children Act 1989, are intended to meet the needs of children who cannot live with their birth parents, for whom adoption is not appropriate, but who could still benefit from a legally secure placement. It is intended that regulations under section 14F of the Act (special guardianship support services) will ensure that local authorities offer a range of support services to be available where appropriate for special guardians and children subject to special guardianship order, their parents and others such as members of the birth family.
267.The intention is that the regulations made under section 26(3C) will require the Children Act complaints procedure to apply where a complaint is about a support service that is provided for the direct benefit of a child subject to a special guardianship order. In all other cases complaints will be made under the social services complaints procedure under section 114.
268.This replaces the power to make regulations about handling complaints about special guardianship support services contained in section 14G of the Children Act 1989, which is repealed by this amendment.
269.Section 118 amends the Health Service Commissioners Act 1993 to enable the Commissioners to consider complaints from individuals who are dissatisfied with the way in which a complaint has been handled under the regulations made under section 113.
270.Section 119 makes the CHAI, the CSCI and other persons charged under the regulations with consideration of complaints, exempt from the subject information provisions of the Data Protection Act 1998 to the extent to which application of those provisions would be likely to prejudice the proper discharge of the function of considering the complaint. The subject information provisions of the Data Protection Act allow for individuals except in certain defined circumstances to seek and obtain information which is held on them by others. Section 31 of the Data Protection Act provides an exemption from these provisions by reference to a number of different categories of regulatory function exercised by public bodies.