Guidance on Jurisdiction

5. Who can complain?

5.1 S26A

26A (1) Under this Part of this Act, a complaint about a matter may only be made –

(a) by a member of the public who claims to have sustained injustice in consequence of the matter,

(b) by a person authorised in writing by such a member of the public to act on his behalf, or

(c) in accordance with subsection (2).

(2) Where a member of the public by whom a complaint about a matter might have been made under this Part of this Act has died or is otherwise unable to authorise a person to act on his behalf, the complaint may be made –

(a) by his personal representative (if any), or

(b) by a person who appears to a Local Commissioner to be suitable to represent him.

S27/1 – Defines “member of the public” as “an individual or a body of persons, whether incorporated or not, other than:

  • A local authority or other authority or body constituted for purposes of the public service or of local government … Any other authority or body whose members are appointed by Her Majesty or any Minister of the Crown or government department….”

Complaints will usually be made directly by the person who is affected. Where someone wishes to complain on someone else’s behalf, we must satisfy ourselves that this is appropriate.

Sections 26A and 27 are intended to exclude, from our jurisdiction, complaints from public bodies (such as councils that are in our jurisdiction as well as parish councils that are not).

Complaints made by individuals, even someone who is a parish/district/county councillor or school governor should therefore not usually be put out of our jurisdiction because of s26A. These are still complaints by ‘members of the public’. They must though be able to show they (or those they are authorised to complain on behalf of) have ‘sustained injustice in consequence of the matter’.

When someone is clearly complaining on behalf of a public body (for example when they are authorised by that body to come to us on its behalf) then, whilst themselves not a public body, they are complaining on behalf of one and are therefore excluded from our jurisdiction by Sections 26A and 27.

GOJ flowchart 3

5.2 Who are members of the public?

Individuals

An individual does not have to be a citizen or a resident in the area served by a Local Authority.

Individuals can include MPs.

It can also include councillors (this includes parish/town councillors as well as councillors of a body in jurisdiction) and council employees.

Many complainants may refer to their membership of a public body in their complaint to us – for example saying they are a parish councillor or school governor. Providing they are complaining as a member of the public who claims injustice in consequence of the matter, their complaint is likely to be IN.  However where they bring the complaint on behalf of a public body then this is OUT of jurisdiction as being a complaint not by a member of the public.

This does not, of course, stop us from considering whether to use our general discretion (s24(6)) to decide not to investigate any complaint because of a lack of significant injustice or evidence of fault.

Complaints can come from volunteers working with bodies in jurisdiction. See section 10.8 for details on how we should approach such cases

Examples:

Mrs Y complains to us about the council not properly taking account of her comments and concerns about a planning application. She is a parish councillor and took part in the public speaking section of a planning meeting. She says the council’s subsequent decision was flawed and she and other parishioners have suffered injustice as a consequence.
IN - Mrs Y is not complaining obo the parish council. She is a member of the public for s26A purposes – so we could investigate or use our s24 discretion not to, for example because of insufficient injustice or unlikely to achieve a different outcome.

 

Mr X is a parish council clerk. He complains to us on behalf of the parish council that the district council has repeatedly ignored the parish council’s comments about a series of planning decisions. The parish council wants to complain in the strongest terms about the impact this flawed decision making has had over the last few years on local people the parish council represents.
OUT - Mr X is complaining in an official capacity as clerk obo a public body and therefore out of jurisdiction on s26A grounds. The parish council is a local authority for this purpose. We cannot investigate, even though he complains in a way that sounds like it is on behalf of local people.

 

Miss X complains the council has failed to deal with parking problems outside the school her daughter attends. Miss X is on the school governing body which has raised concerns about this with the council.
IN - Miss X is not complaining obo the governing body. She is a member of the public for s 26A purposes and refers to personal injustice in consequence of the matter. We would likely investigate unless using s24 (6) general discretion not to do so (for example insufficient fault/injustice)

 

Mr Y complains the council has repeatedly ignored the school governing body’s concerns about parking problems outside the school for which he is chair of governors. He says this failure to address a problem is affecting many parents and children.
Tricky – as currently worded this appears out on s26A grounds because Mr Y is complaining obo a public body. He does not claim personal injustice though we might consider he is a suitable person to complain about non direct injustice given his special interest in the matter in question. He describes the complaint in a way that identifies potential injustice to the governing body (frustration because council is ignoring their concerns) but also injustice to members of the public.

 

A councillor complains that a neighbour’s planning permission will have a detrimental effect on the councillor’s amenity and this was not taken into account by the delegated decision maker. The complaint is IN because the councillor is complaining as a member of the public.

 

A complaint by a council employee about disciplinary action taken against them after they blew the whistle and reported poor management in a home is OUT because they are complaining as an employee.

 

A complaint by the same employee on behalf of their mother who is a resident at the home is IN (provided she has given her consent) because this is about the mother’s injustice.

 

Mr X (who happens to be a parish councillor) complains the County Council wrongly stopped him using a household recycling centre during COVID-19 restrictions. IN because Mr X is complaining about his relationship with the county council as a member of the public

Group of individuals

Often, complaints are received from an individual purporting to represent a group of residents. Always check you have signed letters of authority from the others. Do they want to complain in their own right or are they merely supporting their neighbour in his/her complaint?

Companies, organisations or other bodies

This includes charities, voluntary organisations, care providers, partnerships, limited companies, clubs, residents’ associations etc (examples below).

But excludes:

  • local authorities
  • any other body delivering public services – so a parish council or a board of governors of a school within the public sector cannot make a complaint in their own right (but a private school can)
  • a body in public ownership which is carrying on any industry or undertaking
  • a body whose members are appointed by the Queen, a minister or government department, or whose funding is mainly provided by Parliament.

When rejecting a complaint by an authority constituted for public service/local government purposes (such as a parish council or board of governors), which appears to have substance or raise wider public interest issues, investigators should mention that a similar complaint might be considered from an affected individual. Or consider our powers under s26D.

Examples:

  • A complaint from the Campaign to Preserve Rural England (CPRE) about the way planning permission had been obtained for a major housing development – IN
  • A civic society complained about development of a historic property in a city centre. The Ombudsman accepted that the role of the CPRE and civic societies was to represent public interest in respect of these matters, and that they were not a part of the authority complained of – IN.
  • A housing association complained that housing benefit payments were unreasonably delayed – IN.
  • CAMRA (campaign for real ale) complained about the council’s decision to grant permission for a change of use of a public house which was of historic importance - IN.

5.3 Complaints “on behalf of” a member of the public

See the CPF guidance note on consent for more detailed information and guidance

Who is “authorised to act”?

There is no restriction on the kind of person or body that can complain on someone's behalf. However, complaints “on behalf of” members of the public must usually be made with their written consent both for a complaint to be made and to share their data unless they do not have capacity to provide it. 

We can accept complaints on behalf of someone from relatives, friends, voluntary organisations and legal representatives. In all cases, if the PA is an adult with capacity to provide consent, we must obtain it. We use only our own consent form as it covers all the details that we need.

We can also accept in place of consent, legal authority to act for the person such as Power of Attorney for Property and Financial Affairs, court appointed Deputies, and Appointees.

We do not need consent for someone with parental responsibility to bring a complaint on behalf of a child. However an older child may have capacity to make their own decisions and we should be alert to any conflict of interest or views which may make it appropriate to obtain their consent.

Representatives may have a complaint about their own injustice. This might be investigated separately, in addition to or instead of a complaint on behalf of the PA.

MPs should provide written authority if making a complaint on behalf of a member of the public where they intend to represent the complainant throughout the complaint process.However, a more common scenario is an MP writing on behalf of a constituent to refer them to us, or to chase progress, or to raise issues after the case has been closed. We do not need to ask for written consent in such situations, given the representative status of MPs. This is in line with ICO guidance, but we should always limit the information to respond only to the request,  and if in any doubt, we should ask for written consent.

When a complaint is submitted to us with joint PAs we need to ensure that signed consent from both PAs (even if they are Mr and Mrs) is recorded on the case. We have two additional consent forms which are on Echo, called Consent Authority Form JOINT PA 1 and Consent Authority Form JOINT PA 2.

We should not discuss the case or correspond with other family members or friends who may contact us.  If we are asked to speak to someone else during a call, we should explain to the PA that we could take information from the other person but should not discuss the case with them or provide them with information, and that if the PA wants us to discuss the case with them, we would need formal consent.

If we do not receive valid consent, we should close the complaint by letter as invalid.

In some cases a person affected may have given us consent for the Representative to act, but other factors in the case may lead us to decide the representative is not acceptable. This may be due to doubts regarding a conflict of interest, the possibility of coercion, or the validity of the signatures. In this case we should close using our general discretion under Section 24A (6): ‘Other reason not to investigate’. We should issue a Decision Statement.

Although the Body in Jurisdiction may need to be notified of the closure if it is aware of the complaint, it must not be given any details of the case and any Decision Statement must not be published.

Please note that in such circumstances a representative may still complain about their own injustice if applicable.

We frequently receive complaints from a husband or wife who says they make the complaint on behalf of themselves and their spouse/partner. While in most cases the partner will have full knowledge and consent to the complaint being made on their behalf, we should not assume it is the case. Ask for written confirmation from the other party. If this is not appropriate (eg the person is not able to write), speak to them to satisfy yourself they wish to complain also.

Where we receive a complaint from a couple, or people complaining jointly, all sets of details should be recorded on ECHO and person affected type for the additional complainants should be set as ‘Joint PA’.  If we receive contact from one half of a couple, but the complaint was only registered in the name of the other half of the couple, we should not disclose any information about the complaint or add them as a ‘joint PA’ without confirming matters with the original complainant first.

5.4 Where person affected has died or does not have capacity to provide consent

Where the person affected has died, or does not have capacity to provide consent, the investigator has to decide whether the representative is suitable. In many cases we would expect them to be the executor or Next of Kin, but we need to look at all the information we have about the representative’s relationship with the PA, and any authority to act, either held  currently, or before the PA’s death, to make this decision. Again any conflict of interest or evidence suggesting another person may have a greater claim to be suitable, needs to be considered.

If a person affected cannot give us consent and we decide a representative is unsuitable or not acting in the best interests of the PA or their estate, we should close as ‘Out of Jurisdiction: Discretion not exercised: Section 26A 2(b) Not a suitable person or representative’. We should issue a Decision Statement.

Although the Body in Jurisdiction may need to be notified of the closure if it is aware of the complaint, it must not be given any details of the case and any Decision Statement must not be published.

5.5 Part IIIA complaints

Part IIIA complaints are subject to the same criteria as those in Part III. Section 34C(2) provides specifically that where a member of the public who might have made a complaint has died or is otherwise unable to authorise another person to act on their behalf, the complaints may be made:

by their personal representatives

or by a person who appears to the LGSCO to be suitable to represent them.

5.6 Complaints made by LGSCO staff or others individuals working with LGSCO

Guidance has been produced about how we deal with complaints made by staff members, other individuals working with LGSCO and close family members.

5.7 Matters coming to our attention (s26D)

We can investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result.

26D Matters coming to attention of Local Commissioner

(1) This section applies to a matter which has come to the attention of a Local Commissioner if—

(a) the matter came to his attention during the course of an investigation under this Part [or Part 3A] of this Act,

(b) (subject to subsection (3)) the matter came to his attention—

(i) before the person affected or his personal representatives had notice of the matter, or

(ii) in any other case, before the end of the permitted period, and

(c) it appears to the Local Commissioner that a member of the public has, or may have, suffered injustice in consequence of the matter.

 

(2) In subsection (1)(b)(ii), “the permitted period” means the period of 12 months beginning with—

(a) the day on which the person affected first had notice of the matter, or

(b) if the person affected has died without having notice of the matter, the day on which the personal representatives of the person affected first had notice of the matter.

 

(3) A Local Commissioner may disapply the requirement in subsection (1)(b) in relation to a particular matter.]

 

Section 26D came into force on 1 April 2008 after an amendment by the Local Government and Public Involvement in Health Act 2007, s174(1). s34E (the equivalent provision in Part 3A) came into force in October 2010 by an amendment by the Health Act 2009, s 35, Sch 5, Pt 2, paras 4, 7.

Both section 26D(1)(a) and 34E(1)(a) reference the other, see above. So, it is fine to refer to 26D when dealing with Part 3A cases.

Section 26D is therefore the gateway for us to investigate a wider range of matters that come to our attention during an investigation where we suspect injustice has been caused to other people. It must affect a member of the public and there must be a reasonable suspicion they have suffered an injustice. The member of the public does not need to be personally identifiable by us. We can exercise discretion to disapply s2D(b)(ii) – but we must be able to identify a group or class of people (for example: other recipients of a Special Guardianship Allowance; other residents in a care home) whom it would be reasonably straightforward for the council or care provider to identify.

Our casework guidance statement sets out, in more detail, how we should approach investigations of this kind. 

 

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