Cases passing the jurisdictional tests in the Assessment Code must then be assessed using the four discretionary tests:

• Public interest
• Injustice
• Fault
• Remedy

In some cases, the combined effect of two or more of these tests will give us reason to investigate. In other situations, the weight of one test may be enough to justify an investigation.

We make findings on the balance of probability (‘more likely than not’). Neither the complainant nor the BinJ has to prove something ‘beyond reasonable doubt’. We do not have to be ‘certain’ of something to make a finding on it. We must not use tests of ‘wholly’, ‘utterly’ or ‘Wednesbury’ unreasonableness. We should not describe our findings on the BinJ’s actions using reasonableness, but by using ‘fault’ where we identify it.

Assessment team staff apply the Assessment Code to the facts of each case. Complaints are not scored, weighted or rated using a numerical formula.  

5.1 Cases not forwarded for Investigation

Decisions in this category are the most sensitive, complex and contentious part of the Assessment teams’ work. They demand most of the unit’s time. They require highly skilled jurisdictional and discretionary decision-making and excellent customer focus.  

Cases of this type will sometimes require a telephone or email exchange to test our understanding of the complaint, or a draft decision.

We take responsibility for our decisions, and can disagree with a complainant who considers their case warrants investigation. But it is important we hear and understand complainants and properly explain our decisions.

We must consider all the discretionary tests and balance them, not focus on one to the exclusion of others, for example on fault and understanding the story where there is little or no material injustice. We do not have to be satisfied there is no fault before closing a case, only that the evidence we have does not suggest there was fault which caused injustice and requires a remedy. Unless an investigation could access information the BinJ has not already considered, we need to think what more it could achieve.

See below (cases forwarded for investigation) for guidance on cases where section 26D of the Act might be relevant.

Withdrawn complaints

If a complainant asks to withdraw their complaint, and the assessment is at a very early stage (e.g. after an initial discussion), we can close the complaint by letter. We do not need to create a full decision statement.

At any later stage, in most cases it would be unfair to the BinJ and not in the public interest if we discontinued a case simply because the complainant did not agree with the likely outcome. Once a case has moved from the very early stage, we should issue a final decision in the normal way, even if the complainant has asked to withdraw it.

If we decide a complainant has legitimately withdrawn their case, you need to consider whether to tell the BinJ anything more than the complaint category and that the complainant withdrew their complaint.

Consider this in cases where:

• a complainant asks to withdraw when they find out the law prevents us from investigating; 
• once we explain to a complainant (usually through Intake sending them factsheet G0) we must tell the BinJ their name and address, and our decision, they decide to withdraw.

In such cases, the letter should not contain any information about the complainant. In all cases where we issue a letter to close a withdrawn complaint, mark the case as ‘not for publication’.

Whistle-blower complaints

If the complaint is from a whistle-blower, it is unlikely we will be the best body to act on their issues with their employer. We should refer them to their own organisation’s whistleblowing policy or, if they cannot go to their employer, to any other appropriate person or body. Please refer to our guidance note for more information. The decision not to investigate is discretionary, unless it is clear Schedule 5.4 applies. However, we must not share details, including the PA name, of a whistle-blowing complaint with a BinJ, in line with with * at 4.1 above. 

Cases resolvable with minimal BinJ contact

There will be some complaints we can resolve in Assessment without the need to start an investigation. These will generally be complaints needing a single call or letter to the BinJ. Some examples are where a BinJ:

• has not provided a previously agreed remedy;
• clearly owes a rebate to the complainant;
• has not followed the proper process in enforcing a PCN;
• has accepted fault during or after its own procedures, but not provided a suitable remedy which is not likely to be contentious. This may include making straightforward service improvements as well as personal remedies as set out in our Guidance on Remedies.

There are three possible scenarios with different decision reasons and suggested structure for the decision reason in a statement:

• Where the BinJ appropriately remedies the complaint (for the complainant and/or by improving its service) before it comes to LGSCO the decision reason is ‘Not investigated - complaint upheld, BinJ remedied before LGSCO involvement’
  
  "We have decided not to investigate this complaint about…. The Council has upheld the complaint and has agreed to remedy the complainant’s injustice by…. Further investigation by us would therefore not be proportionate.”
  
  (This reflects the fact for this decision outcome we issue a cover letter that says “Upheld: no further action, organisation already remedied” and record it as “Upheld” for annual reporting purposes.)

• Where the BinJ takes action which resolves the complaint incidental to the alleged fault the reason is ‘no worthwhile outcome achievable by investigation’ and we make no comment on possible fault.
  
  “Following Mrs X’s complaint to us the Council has…[whatever action it has taken that resolves the complaint]. Mrs X has therefore achieved the outcome she was seeking. Further investigation is unlikely to achieve anything more.”
   
• Where we invite BinJ to remedy because it appears there is fault causing injustice the reason is ‘Not investigated - complaint upheld, injustice remedied following LGSCO involvement’. We should set out the letter inviting the remedy in this way:
  • ‘PA complains… [set out alleged fault and claimed injustice]’
  • ‘If we were to investigate it is likely we would find fault causing injustice…’
  • ‘We therefore invite the [BinJ] to take the following action…[say what, consider both personal remedy and service improvement]’
  • Your [BinJ’s] agreement to our proposal would remove the need for a formal investigation.’
    
    The decision statement should follow the same reasoning, and avoid the use of the terms ‘recommendation’ or recommended as we can by law only make recommendations after an investigation. This structure will also avoid the risk of appearing to confirm the PA’s allegation of fault, and make it clear to the reader that we have “upheld” (in plain English terms) the complaint:
    
    The complaint
    
    Mr X complained…[alleged fault].
    He says this caused him distress/financial loss etc [claimed inj]
    
    My Assessment
    
    If we investigated this complaint it is likely we would find the BinJ at fault because…[our reasons]
    We therefore asked to the BinJ to consider remedying the inj caused by its actions by…[set out what we asked the BinJ to do] to resolve the complaint early.
    
    Agreed action
    
    To its credit the BinJ agreed to resolve the complaint and will do X by Y date to put things right.
    
    Final decision
    
    We have upheld this complaint because [the BinJ] has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Mr X [and improving its service for others].

Recording decisions for remedied complaints

Where our involvement has secured a remedy, we must complete the ECHO ‘Remedies’ screen in line with the Compliance Manual. Choose the remedy types which apply from the drop-down list. If we do not already have evidence the remedy has been provided, set the relevant tasks for follow-up to an ATC. We should check compliance in the same way as IU; see parts 2 and 3 of the Compliance Manual.

Where a BinJ has offered a remedy during its own complaints process, and we are not investigating because we consider the offer is fair and proportionate, we use the “Not investigated - injustice remedied during organisation’s complaint processes” decision reason. But we should still record it in the ECHO Remedies Screen. This allows us to separate complaints where there has been fault which the BinJ remedied before the complaint came to us from complaints where our later involvement achieved the remedy.

If we uphold certain Adult Social Care or Education and Children’s Services complaints, we should share the decision with CQC of Ofsted if the relevant conditions are met. See section 35 of the Investigation Manual for detail.  

We should continue to use the “No worthwhile outcome achievable by investigation” decision reason if a BinJ has not accepted fault, and we are not investigating because we cannot achieve anything for the complainant.

Decision reasons for complaints not forwarded for investigation

Not investigated
not warranted by alleged mal/service failure
not warranted by alleged injustice
Upheld - injustice remedied during organisation's complaint processes
Upheld - injustice remedied during LGSCO consideration
no worthwhile outcome achievable by investigation
at request of complainant
other agency better placed
other reason not to investigate*

*See the Casework Guidance on Consent

ECHO instruction – Discretionary Out Early Decisions

Covers Decision, Publication and Closure