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Information for Link Officers

Making a decision

All complaints receive a decision. Where we have considered a complaint in more detail, we will issue a draft decision to both the council or authority complained about and to the complainant. This is an opportunity for each party to comment on our findings so it is important that, if you consider we have made an error in law, or there are factual inaccuracies in the draft decision, you tell us your views. It is unlikely we will change our final decision if a council or authority later supplies information that was available when we consulted on the draft decision. The investigator involved will then consider all comments received on the draft decision before issuing a final decision. The final decision is sent to the complainant and the council or authority complained about at the same time.

The Local Government Act 1974 (as amended by the Local Government and Public Involvement in Health Act 2007) specifies how we can issue these decisions, either by:

  • a statement of reasons for our decision (sections 30(1B) and (1C)); or,
  • a report (section 30(1)).

If we have decided that the council or authority has done something wrong and that this fault has caused an injustice to the complainant, we will suggest what the council or authority should do to put this right. The key principle when deciding an appropriate remedy is, wherever possible, to put the complainant back in the position they would have been in if the fault had not happened. We have published detailed guidance for our staff about what matters should be considered when recommending a remedy. Many councils and authorities find this guidance useful in determining an appropriate remedy for complaints they resolve through their own processes. 

A council or authority should tell us when it has implemented our recommended remedy. If we do not receive information about a remedy, we will follow it up to ensure it has been implemented. Some authorities have stopped making compensation and other payments by cheque. Some complainants may be reluctant to provide their banking details for a BACs payment or may not have a bank account.  Authorities need to ensure there are suitable alternative payment methods in place to address this issue.

Most complaints receive a decision in the form of a decision statement.

Decision reasons

In addition to issuing a decision statement or a report, we will send the council or authority a covering letter which will explain how we have categorised the decision at the bottom of the letter. This categorisation relates to how we will describe our decisions in our annual letters to councils and authorities. See here for a more detailed explanation of specific decision reasons. 

What is said at the bottom of the decision letter What is reported in the Annual Review
These types of complaint do not have a formal decision letter issued for them.  Incomplete/ invalid
These types of complaint do not have a formal decision letter issued for them.  Advice Given
These types of complaint do not have a formal decision letter issued for them.  Referred back fro local resolution
Closed after initial enquiries – no further action Closed after initial enquiries
Closed after initial enquiries – out of jurisdiction Closed after initial enquiries
Upheld  
Upheld: no further action Upheld
Upheld: fault and injustice Upheld
Upheld: fault and injustice – no further action, organisation already remedied Upheld
Upheld: fault & inj – no further action, organisation already remedied Upheld
Upheld: fault, no injustice Upheld
Report Issued: Upheld; fault, and injustice Upheld
Report Issued: Upheld; fault no injustice Upheld
Not upheld: no further action Not upheld
Not upheld: no fault Not upheld
Report issued: Not upheld; no fault Not upheld

Maladministration and  Service Failure

If we make a finding of maladministration or service failure, we call this fault.

The term ‘maladministration’ is deliberately not defined in law and similarly there is no explicit threshold for what constitutes maladministration. Our jurisdiction allows us to investigate alleged or apparent maladministration or service failure.

It is for the Ombudsman to decide whether a particular set of circumstances amount to maladministration. In general terms, it is ‘administrative fault by the body in jurisdiction’ or ‘fault in an action taken by a body acting on behalf of the body in jurisdiction’.

Service failure is defined as:

  • A failure in a service which it was the function of an authority to provide, or
  • A failure to provide such a service

There does not need to be any aspect of blame, intent, or bad faith involved in a body’s actions in order for us to find fault. The existence of ‘Service failure’ or the ‘failure to provide a service’ is a straightforward, objective and factual test of what happened in any particular set of circumstances, independent of any judgement about the body’s intentions.

Both maladministration and service failure are explained further in our Guidance on Jurisdiction.

If we make a finding of fault, the council or authority has a duty to report that finding to its members. However, the requirements to report that finding differ depending on how we have issued our decision.

If we issue our decision as a statement (under section 30(1B)), there is no requirement within the LGA 74 for a council to report a finding of fault to its members. However, there is other legislation (section 5/5A of the Local Government and Housing Act 1989) which places a requirement on a council or authority’s Monitoring Officer to prepare a formal report to the council or authority. This requirement applies to all Ombudsman complaint decisions, not just those that result in a public report; it is therefore a significant statutory duty.

The Ombudsman supports a flexible approach to how this duty is discharged and does not seek to impose a proscriptive approach, as long as the Parliamentary intent is fulfilled in some meaningful way, and the council or authority’s performance in relation to Ombudsman investigations is properly communicated to elected members. We make the following suggestions about how to proceed; however, only the court (and not the Ombudsman) can determine whether or not a council or authority is in breach of a statutory duty.

As a general guide, we suggest:

  • Where the Ombudsman has made findings of fault in regard to routine mistakes and service failures, and the council or authority has agreed to remedy the complaint by implementing the recommendations made following an investigation, the duty is satisfactorily discharged if the Monitoring Officer makes a periodic report to the council or authority summarising the findings on all upheld complaints over a specific period. In a small authority this may be adequately addressed through an annual report on complaints to members.
  • The Monitoring Officer should consider whether the implications of an investigation should be individually reported to members where that investigation has wider implications for council or authority policy or exposes a more significant finding of fault, for example:
    • because the fault is or has been ongoing therefore puts the council or authority at risk of further faut, or
    • because of the scale of the fault or injustice, or
    • because of the number of people affected by it.
  • In the unlikely event that an authority is minded not to comply with the Ombudsman’s recommendations following a finding of fault, the Monitoring Officer should report this to members under section 5 of the Local Government and Housing Act 1989. This is an exceptional and unusual course of action for any council or authority to take and should be considered at the highest tier of authority.

If our finding of fault is issued as a public report (under section 30(1)) of the LGA 74), there is a specific requirement for that finding to be reported to a council’s or authority’s members, and for a formal response to that finding to be sent to the Ombudsman. The council or authority’s response must be sent to the Ombudsman within three months setting out the action that they have taken, or propose to take, in response to the report.

Compliance with our decisions

If we make a finding of fault causing injustice, the Ombudsman will recommend the Council takes steps to put things right for the person (or people) affected. We might also recommend actions to improve services, to help prevent the fault from occurring again.

After we issue our final decision, we expect councils to provide evidence of compliance with our recommendations within the agreed timeframe. We actively monitor compliance with our recommendations, and write to councils to let them know once we are satisfied the agreed actions have been fully implemented. If we consider a council has not provided satisfactory evidence of compliance, or reasonable attempts to carry out the agreed actions, we might open a new investigation, with a view to issuing a public report against the council for non-compliance.

The process for responding to recommendations in public reports is different and is explained fully here.

Publishing our decisions

We have been publishing our decision statements on our website since 1 April 2013. All decision statements are published unless there are specific reasons why we should not publish, for example a risk of breach of anonymity. We name the council or authority complained about and any care providers involved however we do not name specific officers. We wait six weeks after the decision has been issued to publish a decision statement on our website. You should not discuss the statement in public or comment on its contents before that date. If commenting on the decision please be mindful not to share any additional information (e.g care location or school name) that may identify the complainant.Decisions stay on the website for five years and are then removed. Many councils and authorities use our library of decisions to guide their own complaint handling and to identify learning from complaints that might help improve services. You can also subscribe to weekly subject specific emails of our published decisions by clicking here.

Challenging our decisions

Following an investigation every council and complainant receives a draft decision outlining our provisional view of a complaint based on the information we have. If the council disagrees with our findings it should say so in response to the draft decision.

Exceptionally, we have an internal review system in place where a complainant, council or authority can ask for a decision to be reviewed in limited circumstances. These are where there is new evidence or they feel an error of fact has been made. We will not carry out a review simply because a party does not like the outcome. The review is carried out by a manager who has was not involved in the case and who does not line-manage the investigator who made the decision. Requests for an internal review should be made within one month of the final decision being issued. An explanation of the review procedure is available in our Post Decision Review and Service Complaint Manual. A complainant, a council, or authority can also apply to the courts for a judicial review of our decision.

In all other circumstances, case law is clear that councils and authorities must accept the Ombudsman’s findings. It is not acceptable for a council or authority to dispute the Ombudsman’s decision in the media or in other public forums.