The Ombudsman's final decision:
Summary: A Care Home Association complained about the way the Council and the CCG dealt with its complaint made on behalf of its members. We did not found fault in the way the Council and the CCG considered the complaint from the Association.
- The complainant, a legal representative, complains on behalf of a Care Home Association (the Association) that has been involved in negotiations with Northumberland County Council (the Council) and Northumberland Clinical Commissioning Group (the CCG) about care home fees and the care home market in the Northumberland area. The complainant says the Council’s and the CCG’s officers have not genuinely engaged in discussions with the Association. The Association alleges officers have acted in a threatening and bullying manner with some care home providers. The complainant says the Council and the CCG will not agree to appoint an external independent investigator who is unconnected with the Council and the CCG unless the Care Home Association shares the identity of the individual care home providers who have raised concerns. Because of a ‘deadlock’ in the Council’s complaints process the Association says its complaint cannot progress.
What I have investigated
- I have investigated the way the Council and the CCG considered the complaint from the Association. The final section of this statement contains my reasons for not investigating the rest of the complaint.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have considered information provided by the complainant and from the authorities complained about. All parties had an opportunity to respond to a draft of this decision.
What I found
- The Association represents independent care home providers within Northumberland. Its membership accounts for a large percentage of the local care home providers in the Council’s and the CCG’s area.
- In September 2020 the Association submitted a letter of complaint which was directed to the Council and the CCG. The Association said it raised concerns relating to three officers working for the CCG and Council. It requested an investigation into their conduct.
- The Association said it received a response sent on behalf of senior leaders at the Council and the Health and Wellbeing Board. It also received a response from one of the officers who was the subject of its complaint and concerns.
- Due to dissatisfaction with the responses the Association instructed its legal representative to write to the Council in October. It raised a further complaint about the Council’s and CCG’s failure to follow processes or conduct a proper investigation into its complaint.
- The Council contacted the Association to ask for specific examples about each of the issues complained about. The Association sent a detailed complaint letter to the Council in December. The letter cited four grounds to the Association’s complaint. The Association’s concerns included the approach of the three officers involved and the Association’s view the officers did not treat care home providers fairly.
- The Association said although the Council had asked for more information it could not provide more within the letter. It said its members had concerns about providing more specific information because the officers named in the complaint had a reputation of taking or threatening to act in a way which could cause financial damage to its members.
- The Council met with a representative from the Association, its legal representative and an officer working for the CCG and the Council (Officer D) in March 2021. Officer D was also the officer assigned to investigate the Association’s complaint. The Council said it was difficult to investigate the allegations made without further information, for example, which care home providers have said they were subject to bullying tactics from the officers. The Association said it would ask its members if they were willing to share details of the bullying and threatening behaviour. However, it raised concerns about the independence of Officer D.
- A week after the meeting the Association wrote to Council and said, it had consulted with its members, and they were worried about sharing their identity. The Association said it was apparent Officer D was not truly independent of the Council and the CCG. Because of this the Association was reluctant to share further information relating to certain grounds in the complaint.
- The Council replied and said, the Association had not provided sufficient information to allow it to carry out a detailed investigation. Without further information it could not decide:
- if it was appropriate to process all the Association’s concerns via its complaints process or an alternative approach such as contractual review, service level agreement or human resources investigation.
- if it was appropriate to appoint an independent external investigator.
- The Association raised serious concerns in its letter of complaint to the Council and the CCG. Most of the issues relate to the three officers working on behalf of the Council and the CCG in their capacity as commissioners in the care home market.
- The evidence available suggests the Council and the CCG have accepted the complaint from the Association and have so far dealt with it under the Council’s corporate complaints procedures. However, the investigating officer, Officer D, represents both authorities.
- The Association is reluctant to share further information with the Council and the CCG because of concerns about the independence of Officer D. It is also concerned about fear of reprisals for its members who deal with the three officers. The authorities say without more information they cannot progress the complaint.
- It is understandable why the Association feels the way it does given the concerns raised. It is also reasonable for the Council and the CCG to ask for more information so they can decide the best way to deal with the concerns raised. For example, some of the concerns may fall within the category of investigation under the corporate complaints’ procedures. Other concerns may fall outside of this process as they may be better suited to disciplinary procedures or contractual review.
- On the evidence available now, we have not found fault in the way the Council and the CCG have considered the complaint from the Association. It is up to the Council and the CCG to decide how best to deal with the complaints and not the Ombudsmen. The Council and the CCG can also decide whether they need to appoint an external independent investigator.
- If the Association chooses to share additional information with the Council and the CCG and this leads to its members being treated adversely by the authorities the individual care providers can ask the Local Government and Social Care Ombudsman to consider a complaint.
- I have completed my investigation and do not uphold Subject to further comments by the complainant, the Council and the CCG I intend to complete the investigation.
Parts of the complaint that I did not investigate
- I have not investigated the parts of the complaint relating to the conduct of the officers within the care home market as the Council and the CCG are best placed to consider these issues. The concerns link to contractual and commercial transactions which are complaints the Ombudsmen cannot look at.
Investigator's decision on behalf of the Ombudsman