Exclusions

‘A complaints policy should set out the circumstances in which a matter might not be considered or escalated. Organisations should ensure that these are reasonable, and should not deny individuals access to redress.’ (Paragraph 2.3 of the Complaint Handling Code)

Not every concern raised by an individual needs to be considered through the complaints process. It is for each organisation to determine what complaints should be dealt with under their local complaints policy. The guiding principle is that complaints are a safety net for where people have nowhere else to go. Therefore, if there are other avenue for redress, then this usually means the matter should not be considered through the complaints process.

If an organisation decides not to consider a complaint, it should provide its reasons in writing and signpost the individual to the Ombudsman.

Organisations should use our recommended wording for signposting as this will direct individuals to part of our website that will help them decide if we can consider their complaint. Signposting in this way means the complainant can make an informed decision about whether to escalate their concerns and it prevents the organisation from being drawn into prolonged discussions about whether the complaint should be accepted. The Code says organisations should not take a blanket approach to excluding complaints. Therefore, it is important organisations consider the circumstances of each complaint and any feedback from complainants about why their complaint should not be excluded.

Organisations should also carefully consider how excluding certain categories of complaints could impact groups with protected characteristics under the Equality Act 2010. For example, excluding complaints about policies and procedures may prevent people with disabilities from raising concerns about any adverse impacts these may have.

Organisations should review the number and types of complaints being excluded as part of regular monitoring and quality assessment checks. This is to ensure exclusions are being applied fairly and consistently.

We have produced a set of recommended exclusions which are set out below. This is not an exhaustive list. These are designed to ensure the complaints process provides access to independent consideration, and, where appropriate, redress where no other appropriate route exists. Please note the below also applies to complaints from a representative.

Recommended exclusions

• The person complaining has already started legal action about the matter.
  This should only apply where an application has been made to court about the matter. The issuing of a pre action letter does not constitute the start of legal action and it may be in the interests of both parties to resolve the matter through the complaints process rather than through the courts. See the later section of this guide for more information.
   
• The person complaining has a statutory right of appeal to a tribunal, a government minister or court about the matter complained of and it would be reasonable to expect them to exercise that right of appeal.
  This only relates to statutory rights of appeal to one of the bodies set out above which is specifically set out in legislation. This includes complaints about Freedom of Information and Environmental Information Regulations requests which can be subject to an appeal at tribunal following a decision by the Information Commissioner’s Office.
  
  Councils should take care not to exclude complaints on the basis the person has a right to apply for judicial review. This is because most decisions or actions taken by a public body may be subject to judicial review in court. The Courts have considered the suitability of judicial review as an alternative legal remedy and decided that complaining to the Ombudsman is generally more appropriate (Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406). The pre action protocol for judicial review also states that litigation should be a last resort and both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered, including making a complaint to the Ombudsman. Therefore, in most cases, it would not be reasonable to expect a member of the public to pursue judicial review due to the costs.
   
• The specific matter complained of has already been subject to an appeal or is currently subject to an appeal with a tribunal, minister or court, even if the person complaining or their representative is not the appellant.
  There is no merit in looking at complaints  where the matters complained about have already been, or due to be, considered by a tribunal, minister or court. For example where the complainant’s neighbour has already started legal action challenging a new housing development near their homes. While the complainant is not party to the legal proceedings, the matters complained about are linked to the matters to be considered in the ongoing legal action. Therefore, it is not appropriate for the council to consider the issues via the complaint procedure. However, care should be exercised not to exclude complaints affecting individuals which arise from a decision made by a tribunal, minister or court. For example - if a court found an organisation had acted unlawfully in the way it calculated Mr X’s contributions towards his care costs, a legitimate complaint could come from Mrs Y about how it calculated her contributions in a similar manner.
   
• The person complaining can request an internal appeal or review.
  Organisations may operate internal review and appeal processes across a wide range of services where there is no statutory right of appeal to another body, such as a court or tribunal. There is more information about how to deal with review and appeal processes in relation to complaints in the section on appeals and reviews.
   
• Complaints about how the organisation dealt with a complaint about breaches of member code of conduct.
  Local authorities will sometimes receive complaints from elected (or co-opted members) or other individuals about how the local authority dealt with a complaint about a breach of member code of conduct. Councils are required to have in place arrangements for investigating these allegations. These arrangements are separate to the council’s corporate complaints policy.
  
  We do not expect councils to consider these complaints under its corporate complaint policy. This is because of the difficulties the council would have in finding someone senior enough to review the complaint, and because the matter has already been investigated through a separate procedure.
  
  Councils can decline to accept the complaint and instead signpost to us. We are not an appeal body and so would not revisit the matter. Instead, we consider the process the council followed to investigate the complaint. This means we can look at any procedural issues being complained about.
   
• The person complaining has previously had a complaint about the same matter considered under the organisation’s complaints policy or by the Ombudsman.
  Once a complaint has been considered through the complaints process, or by the Ombudsman, it would not be a good use of the organisation’s resources to revisit the matter. Organisations should be conscious of changes in a person’s circumstances or further contact with services which may give rise to a legitimate new complaint.
  
  Organisations should not exclude complaints where a person is complaining the organisation failed to fulfil its promises made as part of local complaints processes. Instead, we expect an organisation to issue a further final complaint response to explain why it failed to fulfil any promises, the action it will take to put things right, and signpost to the Ombudsman. This means complainants are not forced to go back through the complaints process for a second time.
   
• The complaint relates to personnel matters, including recruitment, pay, grievances, removals, discipline and pensions.
  The purpose of the complaints process is to deal with relationships between service providers and service users, not an organisation’s actions as an employer or potential employer. Complaints from staff about matters relating to their employment should be dealt with through personnel policies. Although the actions of an organisation when recruiting staff may not be challenged through personnel processes, they relate to the organisation’s actions as an employer and so it is not normally be appropriate to deal with concerns raised about recruitment through the complaints process.
  
  Members of the public will sometimes ask for disciplinary action to be taken as part of the resolution of the complaint. This is not considered a personnel matter. It is for an organisation to decide whether individual action against an employee is required following investigation of a complaint. However, the details of any action taken is the personal data of the employee and should not be shared with the complainant.
   
• Complaints about policies and procedures, or how an organisation spends its money or allocates resources.
  These decisions are already subject to scrutiny by council members and committees. For this reason, it is not usually appropriate for these complaints to be considered under the corporate complaints process. Councils may also choose to exclude these types of complaints on the basis the complainant is not directly impacted by a policy, procedure, or decision about finances or resources. However, councils should be mindful to exercise discretion to consider a complaint, especially in cases where the complainant is able to explain they have been caused significant personal injustice by the alleged flawed decision/policy.

Complaints which should not be excluded

We have seen examples of organisations excluding complaints about certain matters which should have been addressed through the complaints process before coming to the Ombudsman.

We believe the following complaints should not be normally excluded from complaints processes.

• Complaints about decisions made by the organisation which cannot be overturned or revoked (e.g. decisions to grant planning permission)
  Organisations will sometimes make decisions which they themselves cannot overturn because of the legally binding nature of that decision. For example, a decision to grant planning permission. In other circumstances it may be considered unfair to overturn a decision because of the impact on other innocent party.
  
  However, even if a decision cannot be overturned, organisations may be able to take other action to remedy any injustice or harm caused because of fault in how the decision was made. The organisation may also gain valuable learning from considering the complaint to help improve standards of decision making in future.
   
• Complaints about conduct or behaviour of its staff or members of staff working for third parties acting on behalf of the organisation.
  Organisations may have other processes for dealing with allegations of impropriety by individual members of staff or contractors. However, organisations should still consider complaints about these matters to ensure that the complainant and others are not disadvantaged. Complaints about third parties acting on behalf of the organisation should be treated as if they were complaints against the organisation. 
  
  It is usually possible to investigate what happened without prejudicing any concurrent investigations about how individuals conducted themselves. The organisation may be limited in what it can say in relation to any action taken against individuals, but it may still be able to provide redress if a complainant or others have been adversely affected by the actions complained of. In rare cases, organisations may not be able to consider a complaint because it would prejudice concurrent investigations being undertaken by the Police or other parties including the courts. In these cases, the organisation should explain, as best it can, why this is the case and invite the complainant to complain once the concurrent investigation has concluded. The complainant should still be signposted to the Ombudsman.
   
• Complaints about Data Protection (Data Protection Act 2018 and General Data Protection Regulations (EU) 2016/679).
  The ICO has issued guidance on data protection complaints. The guidance makes clear these complaints be handled under existing complaints processes. Therefore, councils can manage data protection complaints under their corporate complaints process and there is no need to establish a separate process. At the end of the process complainants should be signposted to the ICO and LGSCO.
   
• Complaints involving personal injury and/or loss or damage to property.
  Organisations should not automatically exclude complaints where someone alleges personal injury and/or loss, or damage to property. Investigating a complaint before signposting to insurers gives organisations an opportunity to consider whether they were at fault in the first instance. This may then help organisations and complainants decide whether pursuing an insurance claim is worthwhile. This may save organisations the significant costs of a detailed investigation into claims which are unlikely to be successful. Organisations should also consider the level of redress a complainant is seeking. If the level of redress is not significant then it may be more cost effective to deal with the matter as a complaint and pay any quantifiable losses which are directly linked to fault by the organisation. However, there may be occasions where dealing with the matter through an insurance claim is a more appropriate because the alleged losses are significant. Organisations may decide to refuse a complaint in these circumstances and instead signpost to their insurers.