Responding to non-compliance with recommendations  

When a case of non-compliance is escalated to a Casework Manager, they should:

• review the ‘BinJ Information Screen’ report and/or interactive map to check for patterns of non-compliance;
• take account of the reasons provided by the body in jurisdiction for non-compliance;
• consider whether the outstanding remedy is proportionate and achievable.

The Casework Manager must decide what the appropriate next steps are. This might include (but is not limited to):

• writing to the Chief Executive/Head of the organisation to highlight concern at the delay;
• arranging a meeting with the body in jurisdiction;
• agreeing additional time for the body in jurisdiction to arrange the remedy;
• writing to the complainant to explain the reason for the delay in compliance;
• holding a case conference with the Investigator to discuss the recommended actions (particularly if the recommendations seem unrealistic/unachievable);
• considering the potential for a public interest report;
• ceasing the compliance process if the recommendations are unachievable, or where a public report would be disproportionate to the outstanding actions.

If the timescale for providing a remedy is extended by agreement, the remedy due date must be amended to reflect this.

In cases where follow-up actions have failed and the body in jurisdiction has not provided satisfactory evidence of compliance, the Casework Manager should task the Director of Investigation to record an outcome of Remedy not complete and not satisfied.

Details of the body in jurisdiction’s failure to provide the remedy should be entered on to the BinJ handling screen by the Casework Manager.

Where a body in jurisdiction fails to provide an agreed remedy, the Casework Manger will generally open a new case, to consider the failure to provide an agreed remedy. The new investigation may also consider substantive issues where appropriate. The complaint does not need to be considered by the intake or assessment teams, and should be opened by a team coordinator and allocated directly within an investigation team.

Challenges to compliance outcomes from complainants 

We do not routinely share the compliance-outcomes with complainants, although they may access this information via their OCS account. 

If a complainant queries our compliance outcome, the Casework Manager should explain our decision, and provide any supporting evidence we have received from the BinJ. But we should not engage in protracted correspondence on closed cases.  

Where a complainant makes a substantive challenge to a compliance outcomes, we might decide it is necessary to make enquiries of the BinJ. In this event, we should open a new investigation, and allocate directly in an Investigation team. Because the compliance process has no statutory basis, we risk acting beyond out powers (ultra vires) if we make enquiries to a BinJ outside of an investigation. On a practical level, it is also important this additional work is documented in ECHO, and that investigators are properly credited. 

This means we might originally decide that a BinJ’s compliance actions were ‘satisfactory’, only to open a new investigation and go on to make critical findings. This is defensible, as a positive compliance outcome does not equate to a future ‘no-fault’ finding – it is a light touch check to assess whether a satisfactory response was provided to agreed actions. We should also not retrospectively change the original compliance outcome, as this was based on an assessment of the evidence we had available at the time. 

Assistant Ombudsman are also responsible for alerting Team Coordinators to cases where we have identified a benefit in retaining evidence of compliance with service improvements remedies for longer than 12 months.