Section 26(5) Before proceeding to investigate [a matter], a Local Commissioner shall satisfy himself that—

[(a) [the matter has] been brought, by or on behalf of [the person affected], to the notice of the authority to which [it relates] and that that authority has been afforded a reasonable opportunity [to investigate the matter and to respond]; or

(b) in the particular circumstances, it is not reasonable to expect [the matter to be] brought to the notice of that authority or for that authority to be afforded a reasonable opportunity [to investigate the matter and to respond].

Most local authorities and service providers have a two or three stage complaints procedure. These are designed to put things right for people quickly and efficiently when things go wrong. We would normally expect someone to be able to show they had exhausted such procedures before using the LGSCO service. Even where the complainant urgently needs services, their needs will in most instances be met more quickly by approaching the service provider rather than the Ombudsman.

Unless other statutory time limits exist, we would normally allow a local authority or service provider around 12 weeks to complete its consideration of a complaint.  Where someone had delayed in progressing their complaint from one stage to the next, we may allow longer.  

Ensuring that people exhaust local resolution procedures before coming to the Ombudsman achieves a number of worthwhile outcomes for all our stakeholders: 

• It affords local authorities and service providers an opportunity to learn from mistakes and take remedial action as early as possible in response to a justifiable complaint;
• Where a local authority or service provider feels there has been no fault, it can defend its actions and provide an explanation to the service user; and
• Where local resolution cannot be achieved, the residual matters in dispute have often been refined thereby enabling us to concentrate our limited resources on considering the nub of the complaint.

In limited circumstances in which we would consider dis­-application of the requirement that local authorities and service providers are provided with a reasonable opportunity to respond before the Ombudsman considers the issue.

We will consider each complaint individually on its merits and take account of the unique circumstances. However, in general, we should be very cautious about starting an investigation where local resolution methods have not been exhausted except in the following circumstances:

1. A local authority or service provider has been notified of a complaint but failed to respond within a reasonable time frame: We publish guidance on effective complaint handling for local authorities. Where it is clear a body has not followed principles of effective complaint handling, it may be appropriate to disapply the requirement. This would include cases where it is clear the principles and standards contained within that guidance about accessibility, communication, timeliness, fairness, credibility, and accountability have not been met, it may be appropriate to dis-apply the requirement.  This would include cases where complaints had been made but not responded to; where someone had not been clearly signposted to the next stage of a procedure; or where reasonable adjustments had not been made in order to assist someone in making their complaint. 
   
   Although written as a guide for councils, these principles can usually be applied to any organisation in our Part III jurisdiction.
    
2. A local authority or service provider has refused to consider the complaint, or progress it to the next stage in its procedure:  While we would normally expect a local authority or service provider’s complaints procedure to have been exhausted before considering a complaint, there will be circumstances where it would be unreasonable to do so.  It is not incumbent upon local authorities or service providers to complete all the stages of their complaints procedures where they feel it would not be merited and can clearly demonstrate they have either given proper consideration to a complaint, or there are good reasons why they will not.  (Cost and convenience to the council are not legitimate reasons to curtail the complaints process).  They may decide the complaint is either vexatious or unreasonably querulous. In such circumstances it is open to them to refer a complainant to the LGSCO without completing the procedure. However, in all such cases it will remain our decision whether to accept the case at an earlier stage than usual. 
   
   Note:  Children’s social care complaints:  where councils refuse to progress to stage 2 of the statutory procedure.  Where a complainant requests a stage 2 investigation of their complaint (or where the Council and complainant agree that stage 1 is not appropriate), there is a statutory duty on the Council to carry this out within 25 days.
    
3. Where a complaint comes to LGSCO and the Council is refusing or delaying to conduct such an investigation, and there appears to be no legitimate reason for this, we might make a swift decision on the complaint, recommending that the investigation is carried out by the Council as a matter of urgency. 
   
   We should be cautious about investigating the matter ourselves where a stage 2 investigation has not been completed, unless there are clear reasons for us to do so. 
    
4. The substance of the complaint has already been the subject of a local independent appeal or review procedure and nothing would be gained by asking the local authority or service provide to consider it under its complaints procedure: We would not normally expect complainants to go through a review process AND a complaints procedure in succession. These would include complaints about Blue Badge refusals, school transport, school admissions and appeals, and – in some cases – local welfare scheme applications.  In cases where local authorities and service providers make decisions, and then administer an appeal process, our role is largely restricted to considering whether there was any prejudicial fault in the way in which the appeal was administered.

We have received a viable complaint which may merit joint working and one, but not both authorities’ complaints procedures have been exhausted: In such cases we would not expect someone to have exhausted both BinJ’s corporate or statutory complaints procedures as there is a legitimate expectation that the local resolution response had been ‘joined up’ where the concern was about services being provided by both a local authority and health authority.

Given the above factors, we should not disapply the requirements of s26(5) unless we have very clear reasons for doing so and are confident that it would be fair to both parties to do so.

Whilst not fettering our discretion, the presumption will be against exercising discretion. As we need to be consistent when applying Section 26(5) to our casework, care should be taken to avoid taking an inconsistent approach in either Intake, Assessment or Investigation on the same complaint. This question of whether a complaint is premature will normally be considered by Intake and Assessment and more details are given in the Intake Team Manual and Assessment Manual.

7.1. Complaints about Council-commissioned services and prematurity

The law says the Ombudsman can treat the actions of third parties as if they were actions of the Council, where any such third party arrangements exist (Local Government Act 1974, section 25(6) to 25(8). This means councils keep responsibility for third party actions, including complaint handling, no matter what the arrangements are with that party.

We have outlined a set of principles to clarify how the LGSCO will deal with complaints about services a council has commissioned another organisation to provide on its behalf. This is to ensure consistency in our approach. It is also designed to ensure members of the public are informed of their right to seek independent redress at the earliest opportunity rather than being expected to navigate multiple complaints procedures before bringing their complaint to us.

Principles:

• Councils should have clear arrangements in place for handling complaints when they commission other organisations to provide services on their behalf. Failing to do so would be fault. 
• The arrangements or service level agreements should set out the responsibilities of each party including:
  • who will respond to the complaint;
  • who will signpost the complainant to the LGSCO; and
  • at what stage this should happen.
• Regulations also govern how councils should handle complaints about Children’s Services and Adult Social Care (The Children Act 1989 Representations Procedure (England) Regulations 2006, The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009.) That a third party may be involved does not change the legal requirements.
• Councils should ensure the service provider is aware that the complainant can bring their complaint to us.
• We would generally not expect complainants to complete two (or more) separate complaints procedures before bringing their complaint to us just because a council has decided to commission another body to provide services on its behalf.
• If a member of the public has complained directly to the service provider and has received a response, having completed the service provider's complaints procedure, they can bring their complaint to us.

LGSCO position:

• Intake will forward such complaints to Assessment for further consideration and not automatically treat them as premature, even though the matter may not have been through a council’s own complaints procedure.
• We will consider each case on its own merits.
• Generally speaking, we would not consider the complaint to be premature if the service provider (who is acting on behalf of the council) has responded to the complaint.
• There may be good reasons why in some cases it would be appropriate to expect a complainant to complete more than one process (e.g. where a related safeguarding investigation has been carried out or is ongoing). This decision should generally be made at Assessment but may also be taken at Investigation.
• If we decide the complainant should complete another process (e.g. safeguarding) before we consider the complaint further, we will generally close the complaint using our general discretion.