Guidance on remedies

Part 2

Our role in remedying and preventing future injustice

2.1 Introduction

We can recommend a remedy when we find fault has caused so far unremedied injustice. We call this a personal remedy.

When we decide the organisation needs to learn from this fault to prevent likely injustice to others in the future from similar fault, we can recommend action it needs to take. We call this a service improvement. In almost all cases, we publish council service improvement remedies on the interactive map on our website to show the commitments each has made to learn from what went wrong and put things right for others.

Once we start an investigation we can also investigate and remedy injustice caused to others who have not complained. This can cover specific individuals as well as categories of people caused injustice by identified faults. We set out our approach to using this power to investigate wider injustice here.   

Our decisions explain the link between fault by an organisation and any injustice caused to the complainant and others by that fault. We make decisions on the balance of probabilities. This means we decide what is most likely to have happened. We distinguish between probable links between fault and injustice and any wider problems the person is facing that are unlikely to have been because of organisational fault. We only recommend remedies for injustice caused by the faults we identify. We do not remedy the fault.

In nearly all cases we publish our final decisions without identifiable details on our website. This includes publishing any remedies that the organisation has agreed to carry out. Sometimes, for complaints about adult social care providers, our decisions will set out what we recommend happens next but which the provider has not, so far, agreed to do.

We check organisations do what they say they will. We cannot force organisations to carry out our recommendations. But we publish public reports (and, for adult social care providers, adverse findings notices) that draw public attention to non-compliance. We also use reports to draw attention to particularly significant issues of concern. Councils have to discuss these reports in a meeting of councillors. It is extremely rare for a body not to comply with what we ask.

We use information on compliance in annual letters to organisations. These draw attention to apparent systemic failures to comply with agreed actions. They also point out where we repeat the same service improvement recommendations that have been complied with, but do not seem to have addressed the underlying fault.

Legal basis for recommending remedies

The Local Government Act 1974 Section 26 allows us to investigate complaints which allege maladministration or service failure. Section 26A requires us to only accept complaints made by someone (or by a suitable representative of someone) who has claimed to have suffered injustice as a consequence of the matter.

This injustice includes personal injustice (the loss or reduction of a service, lost opportunity, an unfair charge etc.). It can also include more public, non-direct injustice.

Section 31 (2B) of the Act gives us the power to make recommendations the organisation concerned should take –

  1. “To remedy any injustice sustained by the person affected in consequence of the maladministration and,
  2. To prevent injustice being caused in the future in consequence of similar maladministration in connection with the exercise of the authority’s administrative functions.”

Section 31 (2BA) gives us the same powers to make recommendations to remedy injustice caused by service failure.

Section 34 of the Act gives us the same powers concerning when the actions of (part IIIA) adult social care providers have caused injustice.

2.2 How we make decisions about remedies 

We decide what remedies are appropriate using this guidance for consistency. But we always consider the circumstances of each complaint. We can consider other recent, relevant decisions but we are not bound by remedies we have decided were appropriate in those cases. Even an apparently similar fault can lead to quite different types and levels of injustice.

We consider each case individually. To do so, when we find fault, we look at the scale and significance of the injustice, circumstances of the complainant and whether any aggravating or mitigating factors affect the injustice they experienced. We set out our approach to this here.

We publish this guidance on our website in the interests of fairness and transparency, and review it regularly.

2.3 Key principles behind our recommended remedies

  1. Our remedies attempt to put right the consequences of fault for the people affected, as best as possible in the circumstances. Usually, our recommendations aim to put them back in the position they would have been in, but for the faults we have identified.
  2. We ask complainants what outcome they want from our investigation. We can consider this when deciding whether to investigate, thinking about whether we are likely to be able to achieve that outcome. For example, we cannot ask organisations to discipline or sack staff members.
  3. Our remedies are not designed to ‘punish’ the organisation we find at fault. They are proportionate to the identified injustice. Our emphasis is on remedying personal injustice and supporting organisational learning and improvement to help others.
  4. We do not generally calculate a financial remedy based on what the cost of the service would have been to the organisation. Our remedy could be more, or less, costly and will be driven by what’s necessary to remedy injustice.
  5. We take the complainant’s expectations into account when deciding on an appropriate remedy for injustice. But we are not bound by what they want. We can recommend more than they have asked, or less, depending on our analysis of what is justified by the evidence and our experience.
  6. When we share draft decisions, those involved can comment on our recommendations. We consider what complainants and organisations say but we decide what is an appropriate remedy and timescale. 
  7. We consider any mitigating or aggravating actions by the complainant or organisation that may have worsened or lessened the injustice.
  8. When we identify fault, we always consider whether service improvements are appropriate, whether or not the fault has caused the person complaining an injustice.
  9. Our decisions should be as definitive as possible. Our recommendations should be specific, measurable, achievable, realistic and time limited. We make recommendations we can easily monitor and evaluate, for example: “Has the organisation carried out the new assessment by date X” or “Has the organisation reviewed its policy about subject x/name of policy by date Y”.
  10. It is our decision whether we are satisfied the organisation has completed the agreed actions. Our approach is set out in our Compliance manual.
  11. Complaints about the quality/adequacy of such corrective action normally need to be the subject of a fresh complaint. We can decide to investigate this type of complaint without it going through an organisation’s complaint procedure again. Further details are set out in our Compliance manual.
  12. Our remedies should avoid confusion about their relationship with any actions an organisation has already offered or taken. For example, if an organisation has already offered the person £200 and we recommend a remedy of £500 we will make clear this is not additional to what’s already been offered, but instead is our assessment of a suitable remedy for the injustice identified.
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