3.1 Part IIIA

Under Part IIIA we can investigate the actions of an 'adult social care provider'. Here 'adult social care' means social care within the meaning of Part 1 of the Health and Social Care Act 2008 which is provided to persons aged 18 or over.

Adult social care provider, means a person who carries out an activity which:

• involves, or is connected with, the provision of adult social care; and
• is a regulated activity within the meaning of Part I of the 2008 Act.

We may receive complaints about care providers that are not registered with the Care Quality Commission (CQC). If they are providing services that appear to relate to the arrangement of care the complaint may be within our jurisdiction. Therefore, we should register the complaint in the normal way and pass it through to Assessment for detailed consideration.

We have written guidance about Introductory Care Agencies which appear to relate to the arrangement of care even though these are not regulated by the CQC.

Some care providers registered with the Care Quality Commission may be run by companies that have an HQ based outside England or even the UK. As long as the provider is registered with the CQC and it is undertaking regulated activity then we can investigate complaints about care provision in England (subject to all other jurisdictional considerations) wherever the company has its head offices.Some care providers registered with the Care Quality Commission may be run by companies that have an HQ based outside England or even the UK. As long as the provider is registered with the CQC and it is undertaking regulated activity then we can investigate complaints about care provision in England (subject to all other jurisdictional considerations) wherever the company has its head offices.

For further information on Part IIIA see separate guidance.

3.2 Part III

Section 25 lists the types of authorities within jurisdiction for the purpose of Part 3 of the Act.

Local authorities

The definition of local authority is in Section 34. It includes a county council in England, a district council, the Broads Authority, a London borough council, and the Council of the Isles of Scilly. This includes unitary councils as, in strict legal terms there is no such thing as a ‘unitary authority’. Where a restructure occurs, a district council will be made the county council for its area or visa versa. Alternatively where a new geographical unit is created, it is a district council exercising the powers of a county council or visa versa.

Reference to local authority includes the actions of its executive, including its directly elected mayor (see below). It includes the Greater London Authority (which includes the Mayor and Assembly).

Parish and town councils are the first level of local government. They are not principal local authorities and are not in our jurisdiction. They do not have legal duties to deliver services although some now deliver some services (e.g. street scene) on behalf of a local authority.A complaint against a be investigated. But if a parish or town council is acting on behalf of a principal local authority in respect of one of the principal authority’s functions then the complaint is within jurisdiction and should be registered as a complaint against the principal local authority.

In addition, a complaint about a monitoring officer of an authority within jurisdiction in respect of his/her actions relating to a standards complaint concerning a parish council would also be in jurisdiction. But we would need to consider what we could ultimately achieve by doing so, given we cannot investigate the actions of the town/parish council itself. If we found fault, we could though require the principal authority to reinvestigate the matter.

Any joint board the constituent authorities of which are all local authorities

A joint board should not be confused with a joint committee, as they are fundamentally different. Councils can create joint committees without statute. Complaints involving joint committees should be registered against the relevant council.

There is no general power to create joint boards. Specific powers are contained in a number of statutes and in each case the rules as to the constitution are stated in the enabling statute. Investigators should refer to the Order which established the joint board to identify the constituent authorities. A copy of the Order should be readily available from the joint board. Investigators will then be able to establish whether or not the constituent authorities are all local authorities, as defined by section 34. If so, the joint board is within jurisdiction.

Examples include joint planning boards and joint boards set up under section 6 of the Public Health Act 1936.

Combined authorities (CA)

S 25(1)(cf) says any combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009 is within jurisdiction. The Cities and Local Government Devolution Act 2016 amends the 2009 Act. The role of CAs is likely to expand. Currently most functions are strategic and unlikely to result in many complaints we would investigate. However, some are increasingly responsible for delivery of services, such as transport, across their area and starting to generate complaints. Further details on transport responsibilities are set out under 3.11 below. Care needs to be taken to look closely at the governance structure to ensure the CA is responsible for the function complained about.

In some cases combined authorities carry out activities on behalf of other organisations that are not bodies in our jurisdiction. In deciding whether complaints about such activities are within our jurisdiction, care needs to be taken to the particular circumstances of each complaint and alleged fault, as well as to the nature of the organisations concerned. The question we need to ask is whether the body in jurisdiction has control over the matter complained about, or whether it is acting under the direction and control of a body not in our jurisdiction.

For example:

• Where a combined authority administers a discount travel ticketing scheme on behalf of a private transport company that sets the policy for use of the card, a complaint about a flawed decision not to award a refund (that is in line with that policy) is unlikely to be in our jurisdiction. This is because it is a complaint about a policy that is not the authority’s policy.
• But conversely in the same scenario, if the complaint was that the combined authority was incorrectly applying the policy in a particular case we could investigate – to look at whether it was following the correct process to make its decision. We couldn’t be critical of the policy itself but we could say the combined authority’s decision making was flawed in respect of that policy.
• Similarly in the same basic scenario, a complaint about the combined authority’s delays making a decision about an application for a discounted travel card would probably be in our jurisdiction. It is a complaint about an administrative function of a body in our jurisdiction.

The election of Metro Mayors (see below) to lead combined authorities was introduced by the 2016 Act with the addition of section 107A of the 2009 Act. Under section 107D of the 2009 Act, functions of a combined authority may be exercisable solely by the Metro Mayor of that authority. This may include the functions of a Fire and Rescue Authority and/or Police and Crime Commissioner.

Each CA has a lead Assistant Ombudsman and receives an annual letter from us. Most have complaint procedures that signpost to us. When deciding whether to register a complaint against a CA or one of its constituent councils (or both) we need to look on a case by case basis. Where a complaint has already been through a CA’s complaint process it is likely to be most appropriate to register it against that CA, even if it is mainly about the actions of a constituent council. Third party enquiries to that council may be required.

3.3 Metro Mayors

There are currently (October 2020) nine Metro Mayors in England – the Mayor of London and directly elected leaders of West of England, Cambridgeshire and Peterborough, Greater Manchester, Liverpool City Region, Tees Valley, West Midlands, Sheffield City Region and North of Tyne. 

Neither the Mayor of London or other Metro Mayors exercise statutory authority in an office independent from the Greater London Authority or their combined authorities. Actions of these mayors are actions taken on behalf of the public bodies whose functions have been delegated or devolved to them.

Therefore, providing a Mayor’s decision is one that would otherwise be taken by a body listed in section 25(1) of the 1974 Act then a complaint to us about the actions of the Mayor would also be in our jurisdiction. The complaint should be registered against the relevant combined authority or Greater London Authority.

To decide whether a Mayor’s action is in our jurisdiction, we should consider whether the action concerned falls within the devolution deal for the particular combined authority. We also need to consider whether the complaint is outside jurisdiction because of other constraints imposed by the 1974 Act, for example whether it is an action affecting all or most inhabitants of the combined authority.

3.4 Multi agency bodies and partnerships

Complaints sometimes relate to the actions of multi-agency bodies where there is doubt about our jurisdiction. Councils increasingly work through such bodies across practice areas such as children and adult social services and environmental protection. Governance arrangements vary greatly between these bodies. In some cases they are informal working arrangements where councils remain accountable for decisions. In which case the council is likely to be the BinJ. In other cases, legislation gives the multi-agency body itself the accountability.

Councils are frequently but not always given responsibility for coordinating and/or convening partnerships. They may have formal accountability for the performance of the partnership and for its use of resources. This may be described as the council being the ‘accountable body’ or ‘first amongst equals’. Or the council may be an equal partner without formal powers. This means that whilst a partnership or multi-agency body itself is out of our jurisdiction, the actions of the council (where significant and consequential in commissioning those actions) will be in jurisdiction.

Our approach is that we treat the actions of organisations acting on behalf of a council to deliver its administrative functions as if they were those of the council. For complaints of this kind the standard paragraphs – “Organisations acting obo Council”, and “Organisations acting obo Council (to use in recommended/agreed action section)” should be used to make clear our jurisdiction.

The changing nature of these bodies means it is impossible to give definitive and comprehensive guidance to suit all situations although specific guidance is set out below, addressing circumstances considered in casework.

Where investigators are uncertain about jurisdiction, advice from the Casework Policy Forum can be sought. The Professional Practice Lead is also available for advice. The flowcharts below are designed to be used where there is doubt about whether a body is in jurisdiction and to what extent we can investigate a complaint about it.

3.5 Councils delegating services to councils, cross council collaboration boards and other structures

Our normal approach is to hold organisations to account for functions they have delegated to other bodies. This is important to ensure clarity and ensure proper oversight and responsibility is maintained.

Many councils have entered joint working arrangements to deliver services jointly with other councils for increased efficiency and effectiveness. In other cases councils fully delegate responsibility for services to other councils. This is likely to remain a fluid situation with some arrangements coming to an end and new ones started.

Section 24 of the LGA 1974 gives us jurisdiction over any joint board where the constituent authorities are all councils. It will usually be most appropriate to register the complaint against the relevant constituent council, rather than against the joint board itself.

In making this decision we need to consider whether the body is a legally or properly constituted body against which a complaint could be made, or a more informal working arrangement. We should also consider how much responsibility councils have delegated to the new body. If the legal function remains with the original council, it is still likely to be the body in jurisdiction.

Councils, particularly in two tier areas, may delegate certain of their functions, to other councils. For example, a county council may be responsible for residents parking permits but delegate decisions about day-to-day administration of the scheme to a borough/district council. Section 25 of the LGA 1974 says we can hold councils to account for functions delivered by others on their behalf. But where a body in jurisdiction fully delegates a function to another BinJ we can normally treat that Binj as the organisation against which the complaint is made.

In making this decision we should carefully consider any governance arrangements that informed this delegation. We should look at the specific contractual arrangements of each case. Where we find fault we would normally expect the BinJ to inform the upper tier authority (e.g. county council) about the findings.

Investigators can ask their Assistant Ombudsman or Assessment Manager for advice if they are unsure about which organisation to record a complaint against.

Advice on a highways complaint raising this issue can be found here.

3.6 Integrated health and adult social care teams

The desire to integrate, for efficiency and effectiveness, health and adult care provision is leading to a range of collaborative approaches, some formally through care trusts. This is particularly, though not exclusively, the case in mental health.

Complaints referring to integrated teams should be directed for an ‘initial look’ by the Joint Working Team to determine jurisdiction. This will consider:

• types of action/services complained about;
• whether bodies are exercising a power or duty in relation to that action/service; and
• whether there is scope for joint working

Whatever the decision on jurisdiction, any complaint investigated involving an integrated team would be registered against the relevant council(s) and health bodies rather than the team.

3.7 Health and social care partnerships

Depending on the Government’s programme for health and social care reform, the Greater Manchester Health and Social Care Partnership may be an early example for more common place integration between health and social care. This is a partnership rather than a legal entity. Each partner body retains its statutory function.

Jurisdiction advice about this and any similar partnerships should be sought on a case by case basis based on the circumstances of the complaint to decide if it is a matter for us.  Some such complaints are likely to be for joint working.

Whatever the decision on jurisdiction, any complaint investigated involving a health and social care partnership would be registered against the relevant council(s) and health bodies rather than the partnership.

The terms of reference for a health partnership may reveal its relationship to a body in jurisdiction. In some cases, a council may have a duty to establish a partnership (for example an autism partnership) but that partnership does not then necessarily carry out functions on behalf of the body in jurisdiction.

Even if those functions are not therefore in jurisdiction, it may be that the actions of council officers involved in the partnership are in jurisdiction, for example preparing minutes. In such cases it will be important to decide what responsibility sat with the council for the matter complained about, and whether there was any fault that could be attributed to it.

3.8 Health and wellbeing boards

These are a formal committee of the council, bringing together key organisations to improve the health and wellbeing of the area. They are therefore in jurisdiction by virtue of LGA s25(4).

They are a partnership forum rather than executive decision-making body. It is therefore unlikely we will get many complaints about the actions of the board causing personal injustice. Strategic decisions may prompt complaints from businesses or charities.

The complaint would be registered against the council(s) concerned.

3.9 Formal arrangements under s75 of the NHS Act 2006

The Act gives health bodies and local government the powers to put formal arrangements in place to support and underpin more effective joint working and integration.

Councils and NHS bodies can delegate their functions to one another under s75. NHS organisations can take on provision of social worker and public health services normally the responsibility of councils. However, the statutory responsibility/accountability remains with the original body which would be the body in jurisdiction.

Some complaints involving s75 will be health or social care only, others will be joint. The key question for jurisdiction is which function is the subject of the complaint. Wherever unclear, investigators should refer cases to the joint working team for an initial look.

3.10 Fire and Rescue authorities and Police, Fire and Crime Panels

All fire authorities are within jurisdiction and the fire authority would be the body in jurisdiction against which a complaint is registered. Joint fire authorities are within jurisdiction as a joint authority established by the Local Government Act 1985 Part IV. The joint authority would be the body in jurisdiction.

Administrative and operational failures of fire authorities are within jurisdiction. Their statutory responsibilities are broad in scope and derive primarily from the Fire Services Act 1947. Their responsibilities include providing a fire brigade, training personnel, obtaining information for fire-fighting purposes, minimising damage as a result of fire, rescues from road traffic accidents, dealing with spillages of substances and calls to flooding. Fire authorities also have responsibility for enforcing fire safety matters in a range of premises including workplaces. Those powers do not generally include domestic premises. Fire safety in domestic premises is the responsibility of local housing authorities as part of the housing health and safety rating system under the Housing Act 2004.

The Policing and Crime Act 2017 (PCA 2017) came into force on 31 January 2017. It amended the Fire and Rescue Services Act 2004 by introducing a new section 4A which provides the power for a Police and Crime Commissioner (PCC) to take over the functions of a Fire and Rescue Authority (FRA). It also made a consequential amendment to s 25(1) of LGA74 to incorporate ‘a fire and rescue authority created under section 4A of the Fire and Rescue Services Act 2004 as an authority subject to our investigation.

This is sufficient to maintain our current jurisdiction in relation to Fire and Rescue Authorities, even where the functions are transferred to the PCC.

A further implication is that the Police and Crime Panel’s role is expanded to become the Police, Fire and Crime Panel – and as the Panel is a function of the local authority – its extended remit also comes under our jurisdiction.

The PCA 2017 sets out three governance models:

1. The representation model – where the PCC is represented on their local fire and rescue authority (FRA) with full voting rights on fire issues.
2. The governance model – where PCCs take on the role of their local fire authority. The pre-existing Fire and Rescue Authority ceases to exist as a separate governing body. There would be two separate chief officers (one for policing, one for fire and rescue services) and the services would retain separate identities.
3. The single employer model which goes one step further by combining police with fire and rescue services under the leadership of a single officer (either police or fire officer) who would employ both police and fire and rescue personnel.

Our jurisdiction in relation to an FRA is maintained, even if its functions are transferred to the PCC under either governance/single employer models. We may need to set out our statutory footing for making enquiries. Investigators may need to familiarise themselves with the local model that has been adopted should the PCC have taken over some or all of the FRA’s functions and direct enquiries accordingly.

Arrangements in London are slightly different. Before 2017, the London Fire and Emergency Planning Authority (LFEPA) operated as part of the Greater London Authority. The Police and Crime Act 2017 abolished the LFEPA and created the London Fire Commissioner. This is a functional body of the Greater London Authority (which is in jurisdiction)

3.11 Passenger Transport authorities

Passenger transport authorities are increasingly being integrated within the structure of Combined Authorities (see 3.2 and 3.3 above). This may mean complaints about them appear to fall within our jurisdiction, with the Combined Authority as BinJ. It may be though that the combined authority only has responsibility to monitor and oversee the transport authority’s performance.

Jurisdiction needs to be considered on a case by case basis. It may be necessary to look at how the body was set up and what its legal status is, to determine whether it is within jurisdiction in respect of the matter complained about. For example, Merseytravel (the passenger transport executive for Liverpool and region), despite being an executive body of the Combined Authority, remains legally defined as the Passenger Transport Executive established under the Transport Act 1978 and so outside our jurisdiction. 

Transport for London is within jurisdiction (subject to restrictions on the actions we can investigate – under Schedule 5).

We have had legal advice that South Yorkshire Passenger Transport Executive is not a body in jurisdiction. Transport for Greater Manchester (TfGM) is also not a body in jurisdiction. However, it performs some functions for individual Greater Manchester Borough councils. So depending on the circumstances, complaints from TfGM may be suitable for registering against individual boroughs, depending on what they are about

Greater Manchester Combined Authority (which is a body in jurisdiction) has delegated to Transport for Greater Manchester Committee (which is also a body in jurisdiction) the functions of monitoring and overseeing the performance of Transport for Greater Manchester and determining issues arising from Metrolink contracts. Therefore a complaint about the tram lines in Manchester could be raised against Transport for Greater Manchester Committee as it ultimately bears responsibility for these.

For complaints about any other Passenger Transport Executive the investigator should check how the body was set up, and its legal status, by getting from them their Articles of Association or the statutory instrument which set them up.  For further advice, contact the Professional Practice Lead.

Further guidance can be found in our casework guidance note.

3.12 Police and Crime Commissioners (PCC)

A Police and Crime Commissioner is a body in jurisdiction. However the only actions that can be looked at are those of the commissioner him or herself.

The commissioners’ main responsibilities are the maintenance of an adequate and efficient police force and to provide adequate buildings, vehicles and equipment. (But note a complaint about these matters – for example concerning their value for money in respect of their component of council tax - may be out of jurisdiction because it affects all or most of the inhabitants of the area under section 26(7).)

Complaints that may be within jurisdiction include such purely administrative acts as land acquisition or disposal and liability as a landlord.

We are expressly prohibited from investigating complaints about action taken by police and crime commissioners in connection with the investigation or prevention of crime. Complainants wishing to complain about such matters should be referred to the relevant police authority or the Independent Office for Police Conduct.

We sometimes receive complaints about how the PCC has conducted an investigation about their policing service, for example alleging delays or bias. Where the substantive matter complained about concerned how the police have investigated or prevented crime, we should not normally investigate such complaints. This is because we cannot investigate the substantive matter complained about.

Further guidance can be found in our casework guidance note.

3.13 Police and Crime Panels (PCP)

A Police and Crime Panel is a council committee or joint committee. It is independent of the Office of the Police and Crime Commissioner (PCC) and oversees some of the work of the PCC.

Its role includes:

• reviewing the PCC’s proposals for the amount of council tax local people pay towards policing. It has the power to veto these proposals if it considers the amount is inappropriate;
• considering the PCC’s Police and Crime Panel and Annual Report;
• considering the PCC’s proposals for the appointment of a new Chief Constable, with the power to veto; and
• investigating complaints about the PCC.

The Panel will not scrutinise the performance of the Force as a whole, or the Chief Constable, as this is the responsibility of the PCC. The Panel’s role is generally at the strategic scale, for example scrutinising PCC budgets and confirming appointments. However they also deal with complaints against the PCC.

Since the Panel is a committee or joint committee of a council, it falls within our jurisdiction for non‑criminal matters. How the complaint is registered in ECHO is dependent on the composition of the Panel. Where a complaint concerns a panel relating to a single council this is straightforward – the complaint should be registered against that council. Where a complaint concerns a panel acting across several councils it should be registered against the PCP itself. Exceptionally if a complaint clearly relates to an individual council’s actions, then it could be registered against that council. 

3.14 Community Safety Partnerships

The Crime and Disorder Act 1998 requires all responsible bodies in an area to work together in formulating and implementing strategies to tackle local crime and disorder. This is through a community safety partnership. Many partnerships have an anti-social behaviour group focused on collaborative work to tackle this problem. Our jurisdiction for this is covered in more detail here in our guidance on anti-social behaviour complaints.

The partnership is not a body in jurisdiction. However, our jurisdiction regarding complaints about the community safety partnership is tied to the relevant council that is a member, whose actions we could look at separately from the partnership. We would need to consider whether the complaint is about a council function or service that is for the council to provide.

3.15 Multi-Agency Risk Assessment Conferences (MARAC)

A MARAC is a forum to share information about high risk victims of domestic abuse. It develops a coordinated action plan to increase victim safety. Most MARACs are police led. Council adult and children’s service teams and mental health services will attend.

We can consider the council’s actions as part of the MARAC separately and it would then be the BinJ. The MARAC itself is not a body in jurisdiction. Where mental health services are involved there is the potential for joint working.

3.16 Multi-Agency Public Protection Arrangements (MAPPA)

These arrangements are set up to manage the risk posed by sexual and violent offenders. This involves police, probation trusts and prison service, youth justice board and councils working together.

Where relevant a council’s actions could be considered separately, and a complaint registered against that council. But the MAPPA body itself is not in jurisdiction.

3.17 Emergency planning and preparedness

Councils are category one emergency responders under the Civil Contingency Act 2004 and others. Through emergency planning powers they coordinate work across a range of agencies to plan ahead for civil emergencies, organised through Local Resilience Forums (LRF) they convene.

We could investigate a council’s actions taken in relation to contingency planning or actions taken participating in an LRF. The LFR itself is outside jurisdiction. The complaint would be registered against the council.

Complaints are rare but could be about injustice from actions of responders cooperating. Jurisdiction depends on the nature of complaint, and whose duty the action or inaction complained about was.

3.18 Speed camera partnerships/safer road partnerships

These bring together emergency services, council and Highways England to work on road safety. Their original focus on speed cameras has expanded to cover wider road safety issues.

We can look at the actions of the council. We cannot investigate the actions and decisions of the partnership which is not a body in jurisdiction.

3.19 National Anti-Fraud network

This provides advice and support to public bodies in dealing with fraud. It provides services to councils, housing associations and registered landlords. Individual councils may be subject to investigation, in which case they are the body in jurisdiction. But the network itself is not in our jurisdiction.

3.20 Local Enterprise Partnerships (LEP)

These are partnerships between councils and local businesses. They set local economic priorities and stimulate growth. They are voluntary partnerships, often described as being ‘business led’.

However, councils are generally defined as the ‘accountable body’ for LEPs. This means councils are financially responsible, provide a secretariat and handle complaints. Councils also retain the power to discount business rates and relevant planning powers within enterprise zones, defined by LEPs.

Our jurisdiction only relates to the exercise of the relevant council’s functions within the LEP. In which case the complaint should be registered against that council as body in jurisdiction. We should be cautious about investigating a complaint about a LEP decision already investigated by the relevant council where the decision itself would not be in our jurisdiction.

For example, a LEP Board could agree a grant for a particular project. The council could have been responsible for advising the board about whether the grant should be awarded, using criteria, and then administering payment of the grant. We could investigate a complaint about that administration. Or we could consider a complaint about how the council appraised the project with respect to the relevant criteria. The Board’s actual decision about the award is likely to be a merits decision, and not subject to investigation providing the correct procedure was followed.

3.21 The Environment Agency and Regional Flood Defence Committees

Regional Flood Defence Committees (RFDCs) are made up of a chairman appointed by the Department of Environment, Food and Rural Affairs (DEFRA) and representatives appointed by local authorities, DEFRA and the Environment Agency.

The Environment Agency and RFDCs both have roles in flood defence. Complaints about the actions of these bodies are within jurisdiction but only in connection with flood defence and land drainage matters. Action by local flood defence committees is outside jurisdiction unless the local committee is acting under delegated authority from the regional committee.

Other Environment Agency functions are within the jurisdiction of the Parliamentary and Health Service Ombudsman (PHSO). This includes complaints about the Environment Agency's actions as a statutory planning consultee in relation to flood defence matters.

3.22 Any body of persons acting for the authority under s 101 of the Local Government Act 1972

This section authorises the carrying out of council functions by a committee, a sub‑committee or an officer of the council or by any other council. It also provides that two or more councils may discharge any of their functions jointly.

The councils may also arrange for the discharge of those functions by a joint committee of theirs or by an officer of one of them. Because of the express reference to Joint Committees in section 101(5) of the 1972 Act, our finding on the complaint would relate to the joint committee rather than the individual councils. 

3.23 Waste partnerships and waste authorities

Particularly in two tier council areas, waste partnerships bring together waste collection (district) and waste disposal (county) authorities to reduce waste generation, for example by reducing waste going to landfill.

These partnerships are in our jurisdiction under LGA 1974 s25 where a joint committee has been formed. The body in jurisdiction would be the relevant council, or councils (where for example, the complaint concerns both district and county functions).

In certain areas, for example Merseyside, Recycling and Waste Authorities were created following the abolition of metropolitan county councils. They are statutory authorities working with all the local authorities in their area. Waste Authorities are bodies in jurisdiction in their own account and complaints should be registered against them. 

3.24 Purchasing, tendering or procurement organisations

Councils are encouraged to go into partnership for joint and integrated commissioning of services (for example adoption services). Some are formally constituted joint bodies, others are more ad hoc.

Jurisdiction needs to be considered on a case by case basis as to whether s25 of the 1974 Act is engaged. Individual councils may be subject to investigation depending on the circumstances. 

3.25 Internal drainage boards (IDB)

IDBs are bodies within jurisdiction. They operate in areas of special drainage need and have powers to undertake work to secure clean water drainage and water level management within drainage districts. The area of an IDB is not determined by county or metropolitan council boundaries, but by water catchment areas. They are mainly concentrated in the Norfolk Broads, East Anglian Fens, Somerset Levels and Yorkshire. Some IDBs operate under a different title. For example, drainage commissions, drainage boards, district drainage boards and commissioners. But all are within jurisdiction.

The following information about IDBs is available,

A letter dated 24 February 2004 from DEFRA to all IDBs in England enclosing a model complaints procedure. Section 25(7) makes it clear that action taken by another person on behalf of an authority is treated as being action by the authority. The term “person” would include a body of persons either corporate or unincorporated.

The Commissions for Local Administration (Extension of Jurisdiction) order 2004 extended the application of the LGA 1974 to cover every IDB.

For further information see the Association of Drainage Authorities website and in particular the Introduction to IDB’s factsheet.

3.26 Sea fisheries authorities

There are 10 sea fisheries and conservation authorities surrounding the coastline of England, established by the Marine and Coastal Access Act 2009. Their function is to manage exploitation of sea fisheries resources.

Councils are represented on the authority and they are funded by councils, largely through a Government grant. These committees are within jurisdiction as a committee mentioned in s101(9) of the Local Government Act 1972. The body in jurisdiction would be the sea fishery and conservation authority itself.

3.27 The Homes and Communities Agency (HCA)

The HCA works locally investing in building new homes and creating employment and community facilities. Its investment help build around half of all new homes built in England each year. It also has a regulatory function over social housing providers. It owns public land which it can sell to developers.

Under Schedule 5 Paragraph 8, complaints about the HCA are in jurisdiction only if they are about “action in connection with functions in relation to town and country planning”.

3.28 Education appeal panels (EAPs)

EAPs for community, foundation, voluntary aided and voluntary controlled schools are within the Local Government and Social Care Ombudsman’s jurisdiction (s20 of the School Standards and Framework Act 1998). The actions of EAPs can be investigated when they are dealing with admissions and exclusions of pupils. The complaint should be lodged against the admissions authority as body in jurisdiction.

Academy schools and the appeal panels considering Academy appeals are not in jurisdiction.

3.29 School governors

Governors of schools are within jurisdiction when acting on admission (but not exclusion) matters (schedule 30, paragraph 4 School Standards and Framework Act 1998). This would include in-year admissions, administration of waiting lists and allocation of nursery places within a school. The governing body of a voluntary aided or foundation school is the admissions authority for the school. Beyond this, most actions of governors concern management and internal matters and so are excluded from jurisdiction by schedule 5 LGA.

Note: Governors of Academy schools are not in jurisdiction.

3.30 Meetings under the school admission Fair Access Protocol (FAP)

Each council must have a Fair Access Protocol developed with local schools. This is to ensure, that outside the normal admissions round, unplaced children, especially the most vulnerable, are found and offered a place quickly.

FAPs are a council function so are in jurisdiction. But the council has limited scope to make Academy schools cooperate. It can refer to the Department for Education as a last resort. We should be aware that the council may therefore struggle to get the FAP to reach and implement decisions.

3.31 Learning disability partnerships

These bodies were set up under Valuing People 2001, updated in 2009. They are not statutory bodies. The relevant council is responsible for setting them up. Each governance structure varies. We can look at the council’s actions individually where appropriate.

3.32 Child protection conferences (CPC)

The CPC is a multi-agency body and is not in itself a body in jurisdiction. But there will be aspects of the functioning of the CPC which we can investigate because:

• the lead statutory body appointed by the Conference will usually be the council;
• the lead social worker must be employed by the lead body;
• the council is responsible for making child protection decisions based on its recommendations; and
• council officers will be involved in agreeing the recommendations.

If a complainant wants to complain specifically about the conduct or outcome of a CPC we should normally advise them to make a complaint under local child protection procedures in the first instance (if there is a complaints procedure), and use our discretion not to investigate the complaint at that point. The complainant may come back to us at the end of the process and we will need to consider whether to investigate.

But complaints to us may not just be about the conduct and outcome of the CPC so we need to be aware of what types of complaint we could and should investigate.

Complaints about social workers and managers

Working together 2018 makes clear that social workers and their managers are responsible for:

• convening the conference;
• attending the conference, explaining the reasons for the conference and presenting the information gathered, including any evidence of abuse or neglect and the impact on the child;
• analysing the information to ensure informed decisions can be made about what action is necessary to safeguard and promote the welfare of the child;
• preparing a report for the conference on the child and family and the council’s recommendation;
• sharing the information with the child and family beforehand where appropriate; and
• recording conference decisions and recommendations and ensuring they are acted on.

So, complaints about any of these actions will be within our jurisdiction. For example we may consider complaints about the conduct of social work reports to the Conference and how the information was gathered, how the social worker dealt with the family in the lead-up to the conference, delay in arranging a conference, or failure to invite relevant professionals to the conference. 

Complaints about the conduct of those participating in a CPC

The Chair of the Conference is responsible for the conduct of the meeting and should be a professional independent of operational and/or line management responsibilities for the case. He or she is usually a representative of the council but could be from another agency such as a health body. However, the Chair is accountable to the Director of Social Services. Complaints about the conduct of the Chair, if separable from a wider complaint about the conduct of the Conference, should go to the Director and then follow the council’s complaint procedure (and then to us). But in most cases, the complaint about the Chair will be caught up in a wider complaint about the conduct of the Conference, in which case the local child protection process should normally be used.

If the complaint is about the conduct of an officer (e.g. a social worker) representing a council the complaint will be in jurisdiction.

Complaints about the conduct of other members of the CPC, representing different agencies, should be made to the individual agency.

Complainants may also wish to contact the Health and Care Professionals Council which deals with complaints about professional conduct.

Complaints about the outcomes of CPCs

The CPC plays an advisory role. But the final decision, for example, whether to place a child on a Child Protection Plan or to discontinue a plan, is the responsibility of the council. Therefore complaints about the decision to adopt the Conference recommendations are in jurisdiction. But we would generally consider it reasonable for a council to follow the recommendations of the CPC unless there was a good reason not to. The complainant might suggest the council should not have accepted the CPC recommendations because of some fault in the decision-making process such as:

• a social worker’s flawed report;
• a flawed contribution from other professionals.

The first thing to consider would be whether we have jurisdiction in relation to the actions complained of. A further consideration would be whether the actions complained of fall within the jurisdiction of PHSO, in which case a joint investigation may be a possibility.

But even where we have established jurisdiction, it will be important to consider whether the complaint would be more appropriately dealt with under the local child protection procedures complaint process initially.

Can a complainant come to the us after completing the local child protection procedures complaints process?

Yes but our role will be limited. We may wish to investigate where, for example:

• the local child protection procedures complaints process has not been followed; or
• the local child protection procedures complaints process has identified fault, in which case we could consider whether any injustice has been appropriately remedied.
• Note that under Section 29(1) of the Act we can require any person or body to supply information, regardless of whether that body is in jurisdiction.

3.33 Safeguarding Adults Boards (SAB)

With the changes introduced by the Care Act we can now look at the actions of Safeguarding Adults Boards, and safeguarding adults referrals, including in some circumstances, actions of professionals who are not employees of the council.

Councils are responsible for setting up SABs and, through scrutiny, monitoring their work. Councils have overall responsibility for coordinating adult safeguarding arrangements in their areas.

We have jurisdiction to investigate complaints about safeguarding investigations for which councils have coordinating responsibility. Depending on the nature of the complaint, we can consider whether:

• the safeguarding investigation is proportionate;
• the council has taken appropriate action in response to the findings of the safeguarding investigation;
• the council continues to monitor the situation, e.g. through its contracts and monitoring team or reviews;
• the council can provide evidence why the safeguarding allegations did not meet the safeguarding threshold;
• there were delays or other failures in the process;
• the conclusions are consistent with the evidence; or
• the council considered all relevant and available evidence.

Although safeguarding investigations are multi agency in nature, this does not stop us investigating some matters that relate to the actions of professionals employed by organisations that do not fall within our jurisdiction. For example, if someone complains that a health professional did not properly investigate clinical matters as part of the safeguarding investigation, we can still investigate the impact of this on the decision-making process (for which the council has overall responsibility) if the complainant alleges that it affected the outcome of the safeguarding investigation. 

Usual prematurity rules apply to complaints about SABs. Further guidance is set out in the table below:

Example of complaint	Could the LGSCO investigate?	Rationale
Complainant disagrees with SAB decision to not undertake a serious case review	Yes	Councils have overall coordinating responsibility for SABs and for ensuring there are appropriate multi-agency policies in place. There should be policies about the circumstances in which a serious case review should be carried out. However, this may come down to merits.
Complainant is unhappy with the conduct or decision-making of the Independent Chair	Yes	The Independent Chair is appointed by the Council (requirement under No Secrets; optional under Care Act) so can be considered an administrative function of the Council. We could consider the process for selection and the suitability. The decision-making of the Chair may come down to merits.
Complainant unhappy with decision of a SAB or outcome of a serious case review	Yes	As councils have coordinating responsibility, the decisions taken by SABs would fall under the Council’s administrative functions. Again, the decision may come down to merits.
Complainant is unhappy with a decision reached by a SAB because of the actions or omissions of a professional on the SAB,  who is employed by a body that falls outside the LGSCO’s jurisdiction	Potentially (but we would not investigate the conduct of these individuals)	If the complainant alleges that the actions or omissions led to the wrong decision by the SAB the LGSCO can consider any failures by the SAB in the evidence gathering or decision making stages and whether those failures materially affected the outcome. Under the Care Act councils are responsible for ensuring the members of the SAB are sufficiently skilled and experienced to perform their roles.
Complainant alleges the SAB has not followed its own policies and procedures.	Yes – assuming the complainant is claiming significant injustice	Councils are responsible for setting up and coordinating SABs. Such complaint would be considered an administrative function of a Council.
Complainant unhappy with the length of time taken by an SAB to conclude a case.	Yes	As above.
Complainant says SAB failed to take account of all relevant evidence (including failure to involve the vulnerable adult/representative).	Yes	As above.
Lack of administrative support to SAB/SAR	Yes – assuming the complainant is claiming significant injustice	Council has the lead responsibility for the setting up and conduct of SAB/SAR
Complaint is about the makeup of the SAR and potential conflict of interest	Yes	As above
Chair of the SAB is also the chair of the SAR	Yes	We can investigate this in terms of conflict of interests. But in principle there is no reason why the chair of the SAB cannot be the chair of the SAR
Not sharing the Terms of Reference of the SAR with the representatives	Yes	Whilst SARs are usually convened because of the death of an individual, we could look at how information was shared with reps/family members.
Complainant says a body that falls outside the LGSCO’s jurisdiction failed to provide the necessary evidence to a SAB.	Potentially/ in part	Complainant will probably need to address this issue with the relevant organisation. However, under the Care Act there is a duty on relevant organisations to share any evidence requested by a SAB that is relevant to the SAB’s function. We could potentially investigate whether the SAB took sufficient steps to obtain the evidence and inform the organisation of its duty to share information. However, the LGSCO’s role would be very limited in such cases.
Complainant is unhappy with the conduct of a professional on a SAB who is employed by a body that falls outside the LGSCO’s jurisdiction.	No	The complainant should address their concerns to the relevant organisation or professional body that regulates the particular profession. This could include an individual’s behaviour (e.g. attitude or rudeness).
Complainant is unhappy with a decision taken by a professional/organisation that does not fall within the LGSCO’s jurisdiction e.g. the Police decide not to pursue a criminal investigation; NHS decides not to provide specific medical treatment.	No	These decisions do not relate to the functions of an SAB or a Council and therefore are outside the LGSCO’s jurisdiction to investigate. The complainant will need to raise their concerns with the relevant organisation.

3.34 Channel Panels

These panels are part of the Government’s Prevent programme to support people who are vulnerable to radicalisation. They are charged with identifying individuals at risk and developing an appropriate support plan.

Panels are chaired by the responsible council and involve the police and other relevant local services. The council is lead agency responsible for coordinating the work of the panel. Referrals must be considered by the council and partners alongside their work to safeguard vulnerable individuals.

The above table for consideration of adult safeguarding boards will be helpful in determining our jurisdiction.

Complaints about Channel Panels should normally be categorised in Echo under Corporate & Other – Other

3.35 Development Corporations

The LGA 1974 states that the following types of development corporation are in our jurisdiction.

• Established for the purposes of a new town.
• Established by an order under section 135 of the Local Government, Planning and Land Act 1980 (for an urban development area in England).
• A mayoral development corporation.

Government is currently (2020) calling for new applications for development corporations from private and third sector organisations working in partnership with local councils as part of regeneration for areas. Further proposals may follow from the Government’s proposed reform of the planning system. 

In the event of a complaint involving a development corporation, we are likely to need to consider the specific legal basis for its creation against the circumstances set out in the 1974 Act. 

As an example of specific circumstances, the Sustainable Communities Plan 2003 identified Ebbsfleet and Eastern Quarry as a possible location for the creation of 10,000 new homes, plus commercial, retail, leisure and community space. Slow progress was made in developing the sites. In 2014, the Government announced plans to create 15,000 new homes, and establish an Urban Development Corporation to drive forward delivery.

The Ebbsfleet Development Corporation took over the planning functions of Dartford Borough Council, Gravesham Borough Council and Kent County Council – in relation to planning applications and Compulsory Purchase Orders for the Ebbsfleet area on 1 July 2015. As an Urban Development Corporation, its functions are within our jurisdiction. More information can be found at:  http://www.ebbsfleetdc.org.uk/

3.36 Business Improvement Districts (BIDs)

BIDs are business led partnerships created through a ballot of local businesses. They charge a levy on business rate payers on top of their business rates bill. This is used to develop projects to benefit businesses in the local area.

BIDs are not within our jurisdiction. Any act by a council on behalf of a BID is very likely to be in our jurisdiction because it will likely be the discharge of a council function. The body in jurisdiction for such a complaint will be the council itself.

3.37 Council owned companies

Many councils set up companies for various purposes – for example selling services to other local authorities and, subject to procurement rules, to other purchasers. Council owned companies in England are responsible for a range of activities including providing airports, providing affordable energy to local residents, and providing back office functions to others.

In the case of council owned energy companies the Energy Ombudsman is likely to be better placed to deal with complaints about these, particularly about matters such as poor service or charging disputes.

If a complainant did want us to consider a complaint (for example because they are not a service user and so cannot complain to the Energy Ombudsman) we would need to decide whether any of the council’s functions are in place on a case by case basis, as well as whether there has been possible personal injustice.

For other council owned companies, where the council is acting with vires (within its powers) it is difficult to argue the relevant activity is not a function of the authority. However, care needs to be taken to look at the legal structure of the company in each case, and to consider whether the complaint concerns the exercise of the council’s administrative functions, failure in a service it was the council’s function to provide, or failure to provide such a service.

It is unlikely for example that a complaint about an airport, or a shopping centre, even where that facility is ultimately owned by a council company, is really a complaint about an administrative function, a service or service failure of the council that may own and control that company.

Companies will not be separate bodies in our jurisdiction. They are not one of the authorities set out in section 25 of the 1974 Act. However. where a company is exercising the functions of a body in jurisdiction (e.g. a council), those matters may be in jurisdiction because of subsections 25(6) and (7) of the Act. These set out that where an authority exercises a function entirely or partly by means of arrangement with another person, actions taken by the person carrying out the arrangement are considered as actions taken on behalf of the authority and in exercise of the authority’s function.

 For example: Council X owns a company delivering back office services to the public sector. Council Y purchases services from the company. A complaint about those services would be registered against Council Y (although third party enquiries might be needed to Council X).

When investigating complaints involving companies, it will often be best to start by asking whether the council (or another body in jurisdiction) is responsible for the matters complained about. If the complaint is about the action of a company, then consider whether the company is exercising a council/other BinJ function. This may require further information from the complainant, the company and/or body in jurisdiction.

Do not be dissuaded by terms such as ‘partnership’ which may be used in publicity to describe a relationship between a company and BinJ (for example ‘we work in partnership to deliver housing services’). This term is unlikely to sufficiently clearly reveal the relationship between bodies. It may obscure a situation where the company provides services on behalf of a council / other BinJ.

3.38 Complaints about actions by organisations whose relationship with a body in jurisdiction is unclear

The above section (3) is long and growing, reflecting the increasing complexity of local government and related structures. From time to time we deal with complaints made about the actions of organisations that are not bodies in jurisdiction, nor companies or partnerships set up by a BinJ (covered elsewhere) but appear to have a relationship of some sort with a body in jurisdiction. This section aims to give more general guidance about how to decide on our jurisdiction in such cases. 

For example, a complaint about housing support provided by a local organisation for domestic abuse survivors that works with, but describes itself as independent from, a council.

Deciding whether we can investigate such complaints can be problematic as the organisation concerned may be unclear about its relationship with the council, may see itself as entirely separate from it and therefore not part of our jurisdiction. It may carry out a range of activities, some on behalf of a BinJ, some on its own behalf, outside our jurisdiction. Often bodies of this kind, even those that have emerged out of a local authority structure, may have a fiercely independent culture and not necessarily recognise or accept the relationship as we would need to see it. 

Councils have diverse relationships with local organisations of this kind. Some may simply give grants or other support that recognise the value of those organisations but do not imply delivery of activities on their behalf. In other situations, the relationship is contractual or commissioning – where the organisation is doing work on behalf of the council, as its commissioner of activity. 

In such situations it is often helpful to ask

1. What is the complained about action? 
2. Who is ultimately responsible for (e.g. has a duty to provide), or has commissioned that action? 

And then, if the answer to 2 is a BinJ, then ask

      3. What is the relationship between the BinJ and the complained about organisation in relation to the complained about activity?  

If the answer to 2 is a body in jurisdiction, then we may be able to investigate the complaint (subject to question 3).  If the answer to 2 is not a BinJ, then we cannot. 

If the answer to 3 is a contractual/commissioning relationship covering the complained about activity, then we are likely to be able to investigate as if the council had carried out the complained about actions. 

To answer these questions, it’s often helpful to ask for any contract or partnership agreement. It can be helpful to read these (from a common sense rather than overly legalistic basis) to understand whether the organisation is delivering activities on behalf of a BinJ or not.

‘Commissioning’ is an important term in the above tests but it will not always be described as such by the body in jurisdiction. It generally implies a relationship where one body (the commissioning body) has an agreement with another body to ‘do something’ on its behalf. 

The ‘power of general competence’ gives councils the power to lawfully ‘do’ almost anything not prohibited by other laws (run airports, set up a trading company, buy a village pub for the community etc). So in answering these questions it’s important not to get too hung up on whether the BinJ normally ‘has’ to do something it’s asked another body to do instead.

To explain the challenge, consider these two scenarios based on an apparently similar complaint: 

Complaint: 

Ms Y complains about a local disability support organisation she says is part of the council. She says the organisation has ignored her repeated requests for help and she’s suffered distress and loss of amenity as a result.

Scenario 1: 

We establish the organisation is commissioned by the council, through a contract and service level agreement to provide advice for residents with disabilities on getting out and about. Its that advice that is complained about here. We could decide to investigate. The complained about actions look like they are on behalf of the council.  

Scenario 2: 

We establish the organisation gets grants from the council, those grants are awarded for projects to provide advice as in scenario 1. It is that advice that is complained about here. There is no commissioning or contractual relationship. We could not investigate. Even though the complained about actions are covered by the grants, giving money in this way doesn’t mean the organisation is working on behalf of the council.

Where we do investigate and find fault, we may want to consider whether a service improvement remedy is called for to improve future complaint handling in these situations. Commisisoning / contracting situations of this kind frequently lead to lack of clarity for potential complainants. Councils should be directed to our complaint handling guidance.

3.39 – Newly created /abolished councils

Local Government restructuring, changing the largely two-tier shire council model of 1974 to a generally more unitary system has been a feature of English local government since the 1990s.

The transition process for an area, once agreed by Parliament, is the subject of statutory instruments (usually ‘structural changes orders’) explaining how transition will be managed. These arrangements differ from area to area. In some cases a two tier (county and district) area becomes a new single unitary council (e.g. Shropshire). In other cases a new single unitary city is created within a remaining two tier shire county (e.g. Nottingham/ Nottinghamshire). Finally in some areas the two-tier model is abolished and replaced by more than one new unitary (e.g. Cheshire, Bedfordshire and Cumbria).

Proposals for creation of unitary structures are likely to continue to be a feature of English local government for the foreseeable future, driven by the need for greater efficiency, transparency and simplicity, particularly given creation of combined authorities across parts of the country.

These changes can have implications for the conduct of our investigations and decisions (and especially reports) and it’s worth thinking about these in good time.

This is particularly so for reports that will be published at or around the time of transition, or that will need compliance checks on remedies during the transitional time frame. We need to have confidence the new council(s) will properly own and take responsibility for carrying out agreed actions and considering recommendations.

For instance, a report about a soon to be abolished county council may then be picked up by a successor council or councils. It is normal practice for transitional orders to make provision for all concerned to cooperate to secure economic, effective, efficient and timely transfer of functions, property rights and liabilities. But it is unlikely such orders will explicitly deal with the consequences of structural change on our decisions. 

Although the circumstances will depend on the particular structures and statutory instruments agreed in each case, the following general principles apply when making findings about soon to be abolished councils:

• In the first instance, clarity should be sought from the body in jurisdiction at the time of investigation about responsibility and accountability for acting on our recommendations. Investigators will not always know, nor are expected to be aware of impending structural change. Link officers should raise this with us during our investigation if it is relevant. In cases of uncertainty, the Policy and Stakeholder Relationship Officer can advise on pending restructure legislation.
• Although the Local Government Act 1974 makes no explicit provision for any consequences of structural change during an investigation, we should proceed with confidence that we can rely on any new council(s) to take on responsibility for agreed actions in a final decision or to consider recommendations in a final report. We should make this clear in correspondence where relevant.
• The transitional period (the point at which the former councils are abolished and new ones become operational) may, practically speaking, be an busy one. We can have regard to this in timing issuing of draft decisions/reports, but not to the significant detriment of those already caused injustice by faults.
• This does not mean we set a different or lower standard in these cases. The focus of council restructuring should be on a seamless transfer of responsibilities. This is part of the good administrative practice we expect to see. Shadow arrangements should allow for proper planning of complaint handling.
• We can, as part of our findings decide to find additional fault in this planning (or lack thereof) concerning effective complaint handling, and decide whether this causes additional injustice to the complainant(s).