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Information for Link Officers

Whose actions can we investigate?

We investigate the actions taken by or taken on behalf of a council or authority. An authority may be a drainage board, fire authority, care home or provider, combined authority, school admission appeal panel, Transport for London, an urban development corporation, some multi-agency bodies, and many other organisations.

This means that, where a council or authority has outsourced a service, while it no longer provides that service directly, it remains responsible for it and for the actions of the organisation providing that service. So, if someone complains about a body or organisation acting on behalf of a council or authority, you should still signpost that complaint to the Ombudsman as usual. As more and more councils and authorities are going down the route of either outsourcing or commissioning services, it is important that, when drawing up any contracts or service level agreements, you consider how complaints about the service will be dealt with and that the service provider is aware that a complainant can bring their complaint to the Ombudsman. We have set out some basic principles a council or authority may wish to consider when it is going through the process of arranging outsourced or commissioned services.

Legal and policy background

  • Councils frequently provide local public services by arrangement with a third party partner, e.g:
    • commissioning specific services from a private or third sector provider (e.g. a care home place or housing repairs)
    • contracting for a provider to undertake a whole service area (e.g. that of the local housing authority or highways authority)
    • setting up a separate limited company under council ownership to provide services (e.g. to a defined customer group with a specialist focus)
    • entering a partnership with other councils, NHS bodies, or other agencies to deliver combined or shared services which include council responsibilities (e.g. mental health or learning disability partnership trusts).
  • The law says the Ombudsman can treat the actions of third parties as if they were actions of the council, where any such third party arrangements exist (Local Government Act 1974, section 25(6) to 25(8). This means councils keep responsibility for third party actions, including complaint handling, no matter what the arrangements are with that party.
  • Regulations also govern how councils should handle complaints about Children’s Services and Adult Social Care (The Children Act 1989 Representations Procedure (England) Regulations2006, The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009.)  That a partner may be involved does not change the legal requirements.

Contract or other agreements

  • The processes for dealing with complaints from members of the public and disputes between the council and the provider, perhaps as a result of such complaints, should be clearly differentiated.
  • Councils should include clear arrangements for complaint handling in any contract or agreement under which its partners provide public services.
  • The arrangements should:
    • be consistent with any statutory requirement (e.g. timescales for children’s social care complaints)
    • reflect the nature of the contract. For example, a large care provider may have resources to manage its own complaints procedures, but a smaller, single care home business may not
    • be clear about when the council expects a partner to channel complaints from members of the public to a complaints procedure and when other channels are more suitable. For example:
      • most complaints about a parking or moving traffic Penalty Charge Notice would be more suitable for the statutory representations and appeal procedure
      • complaints about legal action are best dealt with by the court itself as part of the proceedings
      • complaints about matters like nuisances and unauthorised development work the council or its partners did not know about should be treated as service requests rather than complaints
    • include clear agreement on how the council or its partner will handle a complaint regardless of which of them receives it; who is responsible for telling citizens about the arrangements and when; who will be responsible for responding to them, and what procedure to use.

Handling complaints

  • Councils and their partners should agree what the complaints procedures will be, but they may wish to consider the Ombudsman’s published guidance ‘Guidance on Effective Complaint Handling’.
  • Complaints about service or funding levels and policy need to be addressed by the council, not a partner.
  • If someone has completed a partner’s complaints process, we would not expect them to go back through the council’s complaint process before we can consider the complaint. A council is responsible for a partner’s actions, including complaint handling. It will wish to know about complaints, both for monitoring the contract or agreement (see below) and so it can suggest ways to resolve them where appropriate.
  • The agreed procedures should be easy for members of the public to understand, simple to use and in no way deter them from complaining.
  • Most complaints procedures have two or three stages. The number of stages which have to be followed should be minimized.
  • The procedure should make clear:
    • who is responsible for managing each stage; and,
    • how to signpost complainants to the next stage (including, ultimately, the Local Government and Social Care Ombudsman) if they remain unhappy.
  • Councils and their partners should ensure all their staff know what the arrangements are and what their role is in carrying them out.

Monitoring and Training

  • Complaints and how they are dealt with may be a useful measure of contractual or other expectations and may assist in their enforcement.
  • Councils should decide how they wish to oversee the effectiveness of complaints arrangements and what data collection and reporting they need. They may want to be notified of each complaint and outcome, or want information/statistics collated and available on demand or request. This will depend on the nature and scale of the contract or agreement. The identity of complainants should not normally be discernible from published material.
  • Details of complaint monitoring arrangements should be decided with partners at the outset.
  • Councils and their partners should ensure they learn from complaints, both about what works well and what needs improving. The arrangements between them should include a way to do this.
  • The Ombudsman can support councils’ arrangements with their partners by providing suitable training in complaints handling.

The role of Councillors

Councillors have a role both as local Members signposting and pursuing complaints on the behalf of members of the public, and in the scrutiny of arrangements for the delivery and performance of those services. Some questions councillors may wish to consider in their scrutiny role could include:

  • How will the council address complaints about its role in the commissioning and monitoring of services, and their provision?
  • How will the public know who is responsible for dealing with complaints?  What publicity arrangements will be in place and how will their effectiveness be monitored?
  • What information will be provided to councillors about the nature and outcome of complaints? How often, to whom and in what form? 
  • Who decides any appropriate redress for injustice, the council or its partner?  Who pays for or implements the redress?
  • How will the council address the tension between redressing injustice though the complaints system and a third party’s potential desire to deal with matters as a legal or insurance claim?
  • How will complaint information and outcomes be audited to ensure they are complete, reasonable and impartial?