Guidance on remedies

Part 3

Our approach to remedies

3.1 Introduction

This section sets out general principles that are common to all types of complaint. It sets the framework for subject specific guidance.

When we identify fault has caused unremedied injustice we normally consider each type of remedy sequentially, usually moving to the next type of remedy only if we decide there is still significant, unremedied injustice. The exception to this is that we should always consider whether it is appropriate to make a service improvement where we decide that fault has potential to cause injustice to others in future. 

We also consider individual circumstances when deciding on a suitable remedy. These can be:

  • aggravating factors such as vulnerability or prolonged inability to carry out the agreed action that could increase injustice; and
  • mitigating factors such as an complainant’s actions to some extent adding to the problem that could decrease injustice.

3.2 Making an effective apology

Feedback from complainants, including our advisory forum of former complainants and representatives, stresses the importance and power of an effective apology. Complainants often say what they want is for the organisation to accept it got things wrong, recognise the impact this had on them, and apologise, explaining where relevant, how it has learnt from what happened to prevent recurrence.

We cannot put words in the mouths of the organisations we investigate. Our recommendations should make clear what it is we expect the organisation to apologise for and that this should come from someone of sufficient seniority. But organisations should then reflect on our decision and apologise in their own words.

We will consider whether any organisational apologies made before the person has complained to us are adequate to remedy injustice. If the apologies are of the ‘we are sorry you felt it necessary to complain’ type, it is unlikely this will be the case. Similarly, we may decide an early apology is not from someone with sufficient seniority to give confidence the organisation has learnt from what it did wrong.

Sometimes we see organisations writing to complainants after our final decision, to say, “the Ombudsman has told us to say sorry to you”. This is not an effective apology. It distances the organisation from what went wrong, gives no confidence it accepts it should have done things differently or that it has learnt so the same mistakes will not happen again. We will not accept such apologies as adequate remedy for injustice. 

In some circumstances the relationship between organisation and complainant has broken down to the extent that there is no likelihood an apology would remedy injustice. For example, the senior responsible officer at a small care provider may be too close to, or even have been personally involved in the matters complained about. Sometimes complainants tell us they will not accept an apology because of their relationship with the organisation or individual. We will usually not recommend apologies in these circumstances.

Organisations rarely refuse to accept our recommendation to apologise to someone. Although our normal approach to non-compliance is to consider issuing a public report or adverse findings notice, there is unlikely to be value in reporting on this basis alone. This is because a forced apology has no value as a remedy for injustice.

However, we will consider whether the refusal to apologise reflects an organisation’s wider rejection of our findings, suggesting it does not accept it has anything to apologise for. We can decide whether to issue a public report on that basis. We could also decide an organisation is repeatedly failing to apologise, or failing to do so appropriately. This could represent an organisational problem with accepting responsibility. In such circumstances we could decide to issue a public report and/or refer to the issue in our annual letter.

Organisations may sometimes resist apologising because they consider this would be an admission of liability (for example for the death of someone in their care). Our recommendations for apology should be specific to the injustice that is the consequence of identified fault. Such an apology is meaningfully saying sorry for causing that injustice. It is not a blanket statement of admission of wider fault.  

We can, where necessary, direct organisations to the Compensation Act 2006 which says that apologies, offers of treatment or other redress are not, by themselves admission of negligence or a breach of statutory duty.

Apology checklist

We expect organisations to apologise having due regard to the following principles. Where we find fault causing injustice, we will assess any apology already made against these in deciding whether further action is required. We will also use this checklist to determine compliance with an agreed action to apologise. 

  • Timely. Usually when we get involved, considerable time has passed since things went wrong. The impact of an apology by the end of our investigation can therefore be less than an earlier apology. An early, sometimes verbal and personal apology can be highly effective in remedying injustice and preventing escalation. Once we have made our final decision, a prompt apology will therefore likely be best. Our decision should explain the timescale for compliance. The organisation may need to apologise for what went wrong, for any distress and delay this caused, and for the complainant having had to complain to us to achieve an appropriate remedy.
  • Authoritative. The person making the apology should usually be someone sufficiently senior and accountable for taking any corrective action. This shows the organisation has taken the findings seriously, recognises the impact on the complainant and is committed to learn and put things right.

    Responsibility for making the apology rests corporately with the organisation. So, we will not normally seek an apology from a specific officer though we may decide it is essential to specify seniority and accountability. We may also decide either a written or verbal apology is appropriate, depending on circumstances, for example taking account of reasonable adjustments. If we do not specify this, then it is for the organisation to decide what is most appropriate.
  • Specific. The apology should be aimed directly at the complainant and their poor experience of the organisation’s services.

    Though context can help explain the reasons why something went wrong, we will expect organisations to think carefully before appearing to diminish the apology with reference to others’ apparently similar experiences.

    Statements like “At the time of your complaint we were experiencing unprecedented demand for service” may be accurate but can sound like the organisation is excusing rather than apologising for what it got wrong. “We are sorry but…” is often unlikely to be an effective opening line.
  • Plain language. Organisational jargon can sound patronising and lessen the impact of what you want to say. We will expect an apology from someone using plain language. This is likely to have most impact and credibility.

    Organisations should consider any agreed reasonable adjustments and preferences when apologising. This could, for example, mean a face-to-face apology, or one in writing, or with specific text and style.
  • Take ownership. The organisation needs to own what it got wrong. Apologies should avoid passive language – such as “We are sorry your experience was not what you expected”, or language that is ambiguous or dismissive about what actually happened like “I am sorry for any faults that you feel may have happened”. Instead, it should be spoken or written in language that is clear, unequivocal, active, and accountable.  

    Organisations at fault should normally avoid passing onto the complainant some element of responsibility for what happened, for example with statements like “We are sorry you feel upset about this” or “I am sorry you feel we made a mistake”, or “I am sorry for what happened, but if you hadn’t been late then…”.

    Sometimes qualifiers may be appropriate – for example where we find injustice was lessened by what the complainant did. However, they should generally be avoided and used only when necessary.

    Likewise, careful thought should be given before shifting (some of) the blame to other organisations. Statements (from a district council) like “I am sorry this happened, but it was the county council’s fault that the road repairs took so long” may be factually correct. But they diminish accountability, sound like the organisation is passing the buck and can therefore reduce the impact of the apology.

    Instead, the organisation should consider whether to refer to any consequential service improvements – for example ‘Your complaint has shown areas where we need to improve our working arrangements with the county council. I have arranged a meeting with the County Director of Transport to discuss how we can improve our work in future”.

There’s no single format we expect organisations to follow. Standardised approaches can diminish impact because they appear to have come from a corporate template, rather than sincere personal apology.

However, a guiding principle for organisations to think about when preparing to give a verbal apology, or write to say sorry to someone, is to use each of the four Rs (with thanks to the Scottish Public Service Ombudsman). Most effective apologies will generally refer to each of these.

  • Regret: say, sincerely “I/we am/are sorry…”. Consider making the start of the apology personal as using ‘we’ even to correctly imply an organisation-wide apology can come across as impersonal and describing ‘someone else’s problem’. If drawn towards ‘we’ because the individual does not control the outcome, they should consider whether someone else, perhaps more senior, could make the apology more effective. 
  • Responsibility: should make sure the organisation owns up to what it got wrong - “… we didn’t provide you with the support we should have given you to make your application.” Avoid passive language like “… you didn’t get the support you needed” – which leaves responsibility hanging unresolved.
  • Reason: should explain why things went wrong, avoiding straying into an apparent ‘excuse’. Try to use strong language that makes clear what fell short of reasonable expectations.

    Use of the word 'should’ rather than ‘could’ is usually better. For example, “Sorry that we failed to properly consider making reasonable adjustments as we should have when we dealt with your request” is stronger than “We could have done more to consider reasonable adjustments when …”.
  • Remedy: should explain what is being done to put things right, including learning for the future – “I have now fast tracked your application. Staff have been trained to spot and respond quickly in future when someone needs extra help to apply for this service.” This can be the most powerful part of the apology.

We use annual letters to draw attention to councils and certain other authorities we regularly see failing to provide effective apologies. 

We record poor practice – both prior to a complaint coming to us, and in response to our decisions. We will consider that practice when writing annual letters to organisations.

3.3 Taking corrective actions – putting things right

If there is still unremedied injustice after any apology, then we should next normally consider what the organisation needs to do to put things right. Where injustice stems from failure to do something, taking that practical action promptly may be a straightforward remedy that goes some way to reduce injustice. We should also consider whether the inevitable delay has caused additional unremedied injustice.

Sometimes we cannot decide what injustice was caused by the faults we identify before the organisation has taken further practical action. For example, where a council has failed to carry out a Care Act assessment, while we can remedy distress and uncertainty as direct consequences of that fault, we cannot remedy loss of service until we are clear what, if any, service has been missed.

We may, in those circumstances decide to make anticipatory recommendations. For example, ‘If, following the assessment recommended in (A), the council finds Mr X needs extra care, it should put that in place without delay and pay Mr X an additional £500 for loss of support since its failure to carry out an assessment in April 2022’.

Where we have the information and evidence to do so, we should say what probably happened (on the balance of probabilities). But sometimes when we ask the organisation to retake a flawed decision, we cannot reach a finding on injustice from that fault. This may mean we recommend a payment for uncertainty. Further details are set out in the subject specific guidance, where relevant, (e.g. planning).

We normally expect people to make a fresh complaint about concerns with the way in which an organisation has carried out agreed actions. For example, where a council agrees to carry out a new assessment and this takes too long.

Our compliance checks should be straightforward and uncontentious. We check whether the organisation has carried out the actions and in the timescale we agreed. In the previous example we would check the council has carried out the new assessment. We would not check the outcome of the assessment or whether it complies in detail with the Care Act. These matters would almost always need to be the subject of a fresh complaint to the council first.

Sometimes the complainant and the organisation need to keep working together despite damage to the relationship because of fault. We may then recommend the organisation arrange independent mediation to help repair the relationship. Or we may recommend a change in officer contact arrangements (for example a new social worker). Where we do so, this does not imply any criticism of the previous staff. All our findings and recommendations are made to the whole organisation.

In other cases, practical action may mitigate the injustice. The subject guidance gives examples for specific areas of complaint.   

3.4 Quantifiable financial impact

Our approach is always to ask what would likely have happened but for the fault we have identified. Where the organisation has failed to pay money due to the complainant, we may include a recommendation for that sum to be paid in the remedy.

But complainants can be affected by such a fault in different ways and our recommendations will take account of this. Our key principles for this are below.

  • A complainant may not be able to meet a particular cost, and so may build up debt, such as rent arrears, as a result of the fault. Backdating the payment will normally pay off the debt in full or reduce it to a level below the normal threshold for recovery action or eviction. We may also include in the remedy a recommendation to cover quantifiable financial impact (such as summons costs) associated with the debt. We will also consider how much distress was caused to the complainant by unnecessary recovery or repossession action.
  • A complainant may have needed to borrow money to meet costs, so backdating the payment may not completely remedy the injustice. In such cases, we will take account of the costs of borrowing in our recommendation for a remedy.
  • A complainant may pay for a service privately that they did not need to if it were not for the fault. This injustice amounts to a quantifiable financial impact which can be remedied by a straightforward reimbursement. We will, however, carefully consider whether such arrangements were necessary and only recommend a remedy for avoidable financial impact of a fault.
  • A complainant may have been without services during the period of fault, for example care services, which would have been bought using direct payments. The remedy for this depends on the level of injustice caused by not having these services, and should be assessed in line with our guidelines on distress and harm. This may amount to more than the value of the direct payments, if a particularly vulnerable complainant had critical needs and no alternative support. It may amount to less, if needs were met by friends and family (although they may have their own, separate injustices as a result).
  • Complainants may say they have suffered loss of earnings as a consequence of organisational fault. We do not normally recommend remedies that reimburse loss of earnings. This is because we are unlikely to be able to reach conclusive findings (on the balance of probabilities) on such matters through our investigations. We cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. There are frequently other factors, personal circumstances and choices involved. Such payments are therefore best resolved by the courts. If complainants are only seeking such reimbursement, we may decide to end our investigation because we cannot achieve the sought outcome.
  • A complainant may have met costs, which would have been covered by a payment from the organisation, by cutting back elsewhere which should not have been necessary. This is particularly likely to be the case where the money owed was an allowance for looking after a child. Further advice on this type of remedy is given in the subject guidance on education and children’s services complaints.  

Where the organisation has failed to pay money due to the complainant, and we include a recommendation for that sum to be paid, we can decide to recommend an additional payment of interest. We will not normally consider including interest in the remedy unless the period of delay was more than six months, and the payment itself is more than £1,000. We usually base the calculation of interest on the average retail price index for the period (unless set otherwise by law in relation to a specific matter).

Where the complainant has paid for a service they have not received, or which has not been delivered to an acceptable standard, we can decide to recommend refund of all or part of the amount paid. In doing so we should consider what is an appropriate remedy for injustice rather than calculating a ‘compensation’ payment. The level of refund will likely reflect the difference between the service provided and the service paid for. It also reflects the reality that some people will be able to privately pay for services (which can be reimbursed) but others will not. Therefore we will give some people a symbolic payment to reflect the impact of loss of service. This may be a straightforward calculation if the service was not provided at all. But where the service was provided in part, or to a standard below that expected, we take account of this in assessing a fair amount.

Because of the fault, the complainant may have incurred avoidable expenses for items such as travel to school or extra help at home. If we decide these expenses were reasonable and arose directly as a result of the fault we have identified, then we may include a refund in the remedy. Again, there may need to be an interest calculation, usually only where six months or longer has elapsed and the payment itself is more than £1,000.

Avoidable expenses may include professional fees, taking into account the following.

  • Complainants should not need a solicitor or other professional adviser to help them make a complaint to the LGSCO or to the organisation. So, we are unlikely to recommend that fees for this purpose are reimbursed.
  • There may be circumstances where it is reasonable for a complainant to have engaged legal help in a matter, particularly where it is complex. In such cases, we may consider recommending a remedy to reimburse costs which directly and necessarily flow from the fault identified. We will not do this where costs were wholly covered by the legal aid scheme and the complainant has no personal liability.
  • We may recommend a contribution to costs rather than a refund of all the expenses. If we consider the amount of professional advice commissioned was disproportionate, or not all the advice arose from the identified fault, our recommendation will reflect this.

Loss and damage to personal property can also be quantifiable. We do not usually investigate complaints where the claimed injustice wholly or mainly relates to such loss or damage, because such a dispute can be remedied through the courts or by the organisation’s insurers. But sometimes loss or damage may be taken into consideration when it arises from a wider investigation. In such cases, the actual cost of replacing or repairing an item is something we can include in the remedy.

Where an item is irreplaceable because of its sentimental value then the injustice may be distress, rather than actual financial loss.

3.5 Service improvement recommendations – Preventative remedies

We can make recommendations to prevent future injustice to others. We will not always make service improvement recommendations. But when we find fault, we will always consider whether the organisation needs to improve how it works to prevent the same problem happening again to others.

We are not experts in service delivery across the range of subject areas we cover. Where our investigations identify the need for systemic improvements our service improvement remedies should put the emphasis on the organisation, rather than us, working out how to put things right in future.

We are not an audit or regulation body. Instead, we look at organisations through the powerful lens of individual service user experience. We are experts in good administrative practice. Our enabling legislation gives us the power, after consultation with the sector, to issue advice and guidance on administrative practice to organisations. Our guidance notes on good administrative practice and complaint handling for councils (but more widely applicable) set out our expectations. These do not showcase ‘best practice’ but, instead, explain what we expect to happen. Where we identify apparently systemic flaws in complaint handling and administration, we should identify what needs to improve and by when. We can refer to our guidance as a benchmark for this, as well as other relevant guidance.

We might, for example, do so when we identify the need for an organisation to remind staff to properly explain reasons in education appeal decision letters. Or to clearly set out timescales within which a complainant can expect a response from the organisation following a request for service.

Service improvement recommendations should, like all our remedies, be SMART (specific, measurable, realistic, achievable and time-limited). More advice on this is set out in our Compliance manual but in terms of service improvements it means being:

  • specific – we will often recommend the organisation reviews practice or policy and provides training. We should focus on the outcome we want to see achieved. It will often not be appropriate to go into detail about content and style, but the remedy should be clear to the reader about what we expect to happen;
  • measurable – it should be straightforward for us to say whether the action has been carried out. This might be from creation of an action plan, a review report, or a training programme;
  • achievable – the remedy should be something the organisation has capacity and capability to implement. It should be clearly defined and, in accepting the recommendation, the organisation should be clear about what it has agreed to do, and by when;
  • realistic – particularly about timescales. It is likely to take longer to implement an improvement to service than achieve a personal remedy. Our remedies should normally have a maximum of six months for completion. Where we are asking for a particularly large review this may take longer but we will, in such circumstances, normally ask for regular updates on progress. See the Compliance manual (part 2, setting timescales); and
  • time-limited – we should not make open-ended or overly complex recommendations, for example multi-part service improvement where many elements are conditional on each other. Our normal expectation is service improvement remedies should be completed within a maximum of six months but we can allow longer timescales (for example where the improvement needs consultation and approval). Where we do so we should consider requiring more regular updates on progress.

For all service improvement recommendations, we can and should design our expectations by thinking about whether it is appropriate to build in the following.

  • The potential to achieve greater leverage and local ownership of improvement by encouraging elected member (councillor) oversight (councils only). For non-councils we may specify alternatives relevant to the organisation’s management and audit arrangements.

    For councils this might be through asking an overview and scrutiny committee or panel to review practice. These are councillor structures that work in some (but not all) councils to hold the executive (cabinet) to account. In other councils there will be committees performing similar roles but not using the term ‘scrutiny’. Alternatively, or additionally we could ask cabinet/executive arrangements to take ownership of actions. In either case this is likely to help spread and embed learning. Scrutiny can be particularly effective in monitoring the long-term impact of changes and drawing public attention to continued problems.

    Scrutiny work programmes are usually set by councillors. It may take time to secure this agreement. Officers cannot tell scrutiny to act in a particular way or carry out a particular review. They can though recommend such action to the committee. Our recommendations should be realistic in this context.

    It may also be relevant to refer, in recommendations, to the role of the Monitoring Officer as the council’s corporate guardian of due process. This is a role all councils must have. It is like a ‘company secretary’, ensuring the council has due regard to good governance.
  • Framing review recommendations so they encourage problem-solving. For example, we might consider expecting sufficient seniority of oversight of improvement activity to ensure blockages can be removed and/or resistance to changed practice overcome. Similarly, we may seek engagement of relevant partner agencies. For example, this might be where there are issues that cut across council tiers (county, district etc), or between councils and health bodies, range of services and frontline/management roles.
  • Trying to avoid being overly prescriptive, but recommending an approach that gives us confidence the organisation takes the problem seriously. For example, consider whether to recommend a review of practice, review at senior level, and consequential training for staff. Where we ask for a review, we should be clear what evidence we will likely need (e.g. records of training/minutes of meeting discussed).

When considering making a service recommendation, investigators should look back at any of our recent (three years) recommendations agreed by that organisation, at least in relation to the relevant subcategory area. Where we have recently recommended similar improvements be made, but our investigation suggests the problem persists, we can confidently call this out. We may decide it is appropriate to ask the organisation to escalate its actions.

For example: where we find fault in failing to properly explain school transport appeal decisions in several final decisions against the same council over a period of three years we might do the following.

  • Firstly ask for a ‘reminder’ to staff to give clear reasons for refusal decisions in correspondence’.
  • Then in a subsequently upheld complaint ask the organisation to ‘develop an action plan showing how staff will be supported to ensure the council consistently gives clear reasons for refusal decisions in correspondence’.
  • Then finally, potentially in a third similar complaint, as a public interest report, ‘ask the scrutiny committee to carry out a review of the council’s practice regarding communication about school transport appeal decisions. Use our recent findings against the council in case references xxxx as evidence.

    [The reference to three successive decisions and timescales is illustrative rather than intended to be followed in every case.]

Service improvement remedy examples

Some good examples of SMART service improvements, thinking creatively about maximising their impact and likelihood of success are below (other examples are given in service specific guidance in section three ).

Within three months of the final decision the council will provide a report to a relevant overview and scrutiny committee about the timeliness of stage two statutory complaint investigations, progress with the council’s action plan, and what further steps need to be taken to ensure investigations are completed within statutory timescales.

Within three months the council will develop and implement complaint response letter templates to ensure they include reference, where appropriate, to which stage of the complaints process they are issued under, and how the complainant may progress their complaint if they are unhappy with the response.

Within three months, at a senior level, the council will undertake a detailed review of this case. The review will focus on why the complainant’s child was not provided suitable alternative education when he was unable to attend his mainstream private school. The council will review why an Education, Health and Care plan (EHCP) review was not undertaken to inform what provision the child needed to make transition to secondary school viable. The council will then provide training to all staff involved in EHCP arrangements relating to the Code, specifically when an annual review of an EHCP should be commenced, finalised and issued.

Within one month the council will remind officers about the importance, for officers responsible for carrying out age assessments, of them following the guidance and, where it is decided the guidance should not be followed, to keep a record of the reasons why.

Within three months the care provider should review staff training to ensure all care workers understand the importance of following the individual resident’s care plan and keep accurate records of care made at, or soon after the time care is given. 

3.6 Remedies that invite organisations to carry out further reviews

All our remedies must either:

  • remedy injustice to the person(s) affected; or
  • prevent re-occurrence of fault causing injustice to others in the future.

This means we must, through our investigation, be able to reach a decision from the evidence seen that fault has caused injustice to the complainant or other persons affected.

Sometimes our investigations point to a potential injustice that may have already affected others but where we are not able to define its extent without carrying out further evidence gathering. For example, we discover a council has been wrongly calculating an allowance for special guardians.

We do not have the power to recommend an organisation carries out an ‘audit’ of other potentially affected persons itself. Although in the past we have made such recommendations (that have been accepted by organisations), they are not covered by our legislation so we will avoid making further such ‘audit style’ recommendations.

Instead we have powers (under s26D of the Act) to investigate matters that come to our attention during an investigation where we suspect injustice has been caused to others.

We can do this either as part of an ongoing investigation, or by opening a new, anonymous, ‘A N Other’ investigation. For further information see our 26D CPF guidance note.

Our enquires should aim to get sufficient information from the organisation to define the group we believe has been affected. Having done so we can then make recommendations to address any injustice we have identified.

We will not recommend the organisation investigates the matter further itself as we do not have this power. Rarely we may ask an organisation to voluntarily do so where it is proportionate and pragmatic. However this will be the exception. We can also recommend the organisation advises other people potentially affected about how to complain or what action to take if it finds others were caused injustice.

3.7 Make symbolic payments

All our remedies aim to try to put the person back in the position they would have been if the fault had not happened. Our remedies should always therefore try to be restorative, focused on trying to put things right. They are not intended to punish the organisation in the way a court might, for example, in the form of awarding ‘damages’, or as ‘punitive compensation’ which is sometimes available to the victims of crime.

When, having already considered each of the previous remedy options, we identify there is still significant unremedied injustice arising from the fault(s), we can ask the organisation to make a payment to symbolise and acknowledge the distress or difficulties the person has been put through because of what it did wrong.   

Where this is the case, a meaningful, symbolic payment can show the complainant had legitimate cause to make their complaint. It can help draw a line under events and help the situation move forward.

We cannot make people spend symbolic payments in a particular way. Sometimes it may be appropriate to say something like “this could be used / is intended to benefit xxx”. But in general, such specificity should be used sparingly and only where we decide it is most likely to lead to effective remedying of injustice caused by fault.

Occasionally we may recommend some other form of symbolic award or action but, as with cash payments, care needs to be taken to avoid recommending something that has no realistic prospect of remedying injustice. This will differ from case to case depending on the circumstances and expectations of the complainant. Usually however where we decide a symbolic action is appropriate, cash gives greatest flexibility to the complainant who can decide to spend it however they see fit.

When considering recommending a symbolic remedy, we should think carefully about whether it is realistically likely to remedy our assessment of injustice in the context of that complaint. Relatively small symbolic payments can seem disrespectful to complainants in the context of their perceived injustice, and of the wider circumstances of the complaint. That said, a small symbolic payment could still be significant so we will consider each case on its circumstances. 

It may be difficult for a complainant to distinguish between injustice that is the direct consequence of fault, and wider distress caused by their situation, not directly connected to the faults we have identified. In such situations a symbolic payment may be inappropriate, even if otherwise normally justified. This is a difficult decision for the investigator, likely based on what the complainant has said about their desired outcomes.

On the other hand, complainants can welcome the redemptive power of symbolic payments that help to heal injustice, in some way putting them back (mentally), into the place they would have been, but for the fault.

Payments to recognise distress can appear inconsistent, sometimes upsettingly so. Inconvenience from a repeatedly missed bin collection might warrant a symbolic payment. Yet a case involving the death of someone in care, where the identified fault was in record keeping, with no injustice, could result in no payment. Set alongside one another this can add to the distress we are seeking to remedy. Publicity for compensation claims achieved through other routes for resolution means expectations can be unrealistic when set against the legal framework in which we operate.

Symbolic payments should not be ‘token’ or ‘tokenistic’ or be described in those or similar terms. We should not decide to recommend such a remedy for convenience or because nothing else is available and we have a sense that ‘something’ must be done. Instead, we should consider whether such a remedy meaningfully addresses outstanding injustice in each case, having gone through the other types of remedy.

We frequently investigate complaints from and, more often, on behalf of children and young people. When recommending symbolic, and other payments to remedy injustice caused to young people we should normally try our best to ensure they benefit. Often the circumstances mean we cannot ask the organisation to pay them directly although for over 18 year olds it should almost always be possible. Nor can we compel their representatives (usually parents or guardians) to spend money in particular ways.  We can though include forms of words such as ‘this should be used for Miss X’s ….’ Or ‘this could be spent to …’ 

Symbolic payments are usually for injustice in the form of:

  • distress – significant anxiety, frustration, upset or pain. A payment for distress will reflect more than simple inconvenience or moderate disappointment with flawed actions/ inactions;
  • harm or the risk of harm – where the fault caused, or risked causing physical injury, material damage, ill or adverse effects including mental harm on the person(s) affected;
  • time and trouble – this should be used for injustice from mistakes in how the organisation considered the complaint (for example taking much too long, avoidably requiring repeated follow ups. Delays in taking substantive actions (for example carrying out an assessment) may have caused distress or warrant other remedies but should not lead to a time and trouble payment. We do not recommend time and trouble payments just for having to complain through the organisation’s complaint procedure, or for someone having to bring their case to us; and
  • non-direct injustice (outrage) – these are remedies for injustice caused because the person had a justified, strong reaction of anger or indignation to the fault, even though they did not directly lose out, were not harmed or caused personal distress as a result. We set out our approach to non-direct injustice in the Guidance on Jurisdiction.

    It can be hard to distinguish between payments for distress and for non-direct injustice (outrage). It may be helpful in such circumstances to ask whether the complainant was personally negatively affected by what happened, or whether their ‘distress’ was because they were upset the organisation did something wrong.

Our approach to each is outlined in more detail below.

i. Distress

Many, perhaps most, complainants that come to us describe the distress they have experienced because of their complaint. We should only remedy distress we decide is significant.

‘Distress’ can include:

  • uncertainty: our starting point for a remedy is to decide what an organisation would probably have done, but for the fault. However, if even on the balance of probabilities, we cannot say how the outcome might have been different, then we can recommend a payment for distress to reflect that uncertainty. This is not to second guess the missed opportunity of a different outcome;
  • raised expectations: if the organisation’s actions led the complainant to (wrongly) believe that certain actions or benefits would follow;
  • lost opportunity: where the complainant was deprived of an opportunity to take action or influence events, and it is likely the final outcome would have been different but for this omission; and
  • undue significant stress, inconvenience and frustration.

We must be clear that it is avoidable distress arising from fault by the organisation which we are recognising with a remedy. We must also be satisfied the injustice is sufficiently significant to warrant a distress payment. Not every instance of ‘raised expectations’ or ‘uncertainty’ will justify a payment.

When we assess distress, we consider the complainant’s individual circumstances (such as their health, age, and financial circumstances). In deciding a remedy we will consider the complainant’s assessment of distress or inconvenience they have suffered. Some complainants may understate the degree of distress or inconvenience they have suffered, while others may overstate the position. The courts have confirmed it is for us to decide on injustice having considered these matters. More detail is set out in the section on aggravating and mitigating factors below.

The same fault could lead to different degrees of injustice and therefore different remedy payments, depending on its consequences and the other circumstances of the case. Our recommendation for a remedy needs to reflect all the circumstances including:

  • the severity of the distress;
  • the length of time involved;
  • the number of people affected (for example, members of the complainant’s family as well as the complainant);
  • whether the complainant or other persons affected are vulnerable and affected by distress more severely than most people; and
  • any relevant professional opinion about the effects on any individual.

Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500.

We can recommend higher payments to remedy distress where we decide it was especially severe and/or prolonged and/or taking account of personal vulnerability of those affected. Where we do so we will explain our reasons in our decision statement.

ii. Harm or risk of harm

Where the complainant claims injury or harm to health as the main injustice, this is usually a matter for the courts to decide. But sometimes it is appropriate for us to acknowledge the impact of the fault has included harm, or risk of harm.

Such harm, or risk of harm, can arise when the complainant, because of fault by the organisation, did not receive services intended to provide protection or support. In general, harm or risk of harm needs to be considered in the same way as distress. Harm can be physical or mental impact. We can consider:

  • the severity of the harm or risk of harm;
  • the length of time involved;
  • the number of people affected (for example, members of the complainant’s family as well as the complainant);
  • whether the complainant or other persons affected are vulnerable and affected more severely than most people; and
  • any relevant professional opinion about the effects on any individual.

Where fault by the body in jurisdiction exposed a complainant to the risk of harm (rather than actual harm), a symbolic remedy of up to £1,000 will usually be an appropriate acknowledgement of the impact of the fault.

Where the risk was particularly severe, or harm occurred, particularly where it affected a vulnerable person (and that vulnerability aggravated injustice) and/or lasted for a long period of time, we may decide a higher remedy payment is justified. Where we do so we will explain our reasons in our decision statement.

iii. Time and trouble (because of flaws in complaint handling)

There is inevitably time and trouble involved in bringing a complaint. But this only generally requires a remedy (separately to any remedies associated with injustice from the complained about actions) when there has been a fault in the way the organisation considered the complaint. This means injustice of time and trouble above what is considered usual. For example, the:

  • organisation repeatedly refused to consider the complaint;
  • complainant had to ask a councillor or MP to help, before the organisation would consider the complaint;
  • organisation spent several months considering the complaint multiple times at the first stage of its complaints process, instead of progressing the complaint to a higher level; or
  • organisation did not consider the conclusions and recommendations of an independent investigation into the complaint.

Our normal approach in such cases is that an apology is sufficient to remedy injustice from the flawed complaint handling. However, we are increasingly concerned about the adequacy of complaint handling by councils, care providers and other organisations. In cases like these, if the organisation had acted without fault, it could have resolved the complaint without involving us. So those circumstances may justify a payment for time and trouble.

If we decide an apology is insufficient, for example because of the severity of impact on the complainant caused by their personal circumstances, or because of particularly serious fault causing substantial injustice, we can consider recommending a symbolic payment.

The remedy payment for time and trouble is likely to be up to £500. This payment should be adjusted to reflect the degree of extra difficulty experienced by the complainant, and any factors which make the complainant vulnerable. We do not recommend repayment of the actual costs (such as postage and phone calls) associated with making a complaint.

iv. Non-direct injustice

Most of our remedies are for personal injustice caused by fault. The courts have said injustice also includes the “sense of outrage aroused by unfair or incompetent administration, even where the Complainant suffered no actual loss” (R v Parliamentary Commissioner for Administration, ex parte Balchin [1996] EG 166 (CS)).

Our Guidance on jurisdiction explains the tests we apply to decide whether to investigate complaints where the claimed is public or non-direct injustice.

Remedies for this type of injustice should focus on the organisation learning from what happened, ensuring similar incidents do not occur in future. Complainants frequently state they want the organisation ‘to learn from what went wrong to prevent the same happening to others’. 

We will not usually recommend an additional remedy for the personal impact of non-direct injustice. An apology will likely be the most important and meaningful personal remedy, particularly when we also recommend the organisation learns from what went wrong. A symbolic payment is unlikely to remedy someone’s sense of outrage. If someone expects a payment in these circumstances, it is more likely that they are asking for this to punish the organisation and we cannot award punitive compensation.

3.8 Aggravating and mitigating factors

When deciding on a suitable personal remedy we can decide to consider:

  1. any vulnerabilities or other particular circumstances of the person(s) affected that might increase injustice caused them by the fault (aggravating factors); and  
  2. whether the actions of the person(s) affected or others contributed to the problem, reducing injustice (mitigating factors).

These factors are potentially relevant to any type of remedy. For example, they may justify higher, or lower payments. They might also strengthen the case for service improvement recommendations, for example better taking account of personal vulnerability. Equally they could affect the approach taken to an effective, meaningful organisational apology.

Aggravating factors

We make no assumptions that a particular issue – for example a complainant’s mental ill-health or low income – necessarily means they suffered increased injustice. Instead, we look at the particular circumstances of each complaint. We listen to what someone says about the impact of fault but we decide what injustice this led to.

Someone could not mention their vulnerability, but we could still decide to give weight to it in deciding a remedy. Alternatively, someone could place great personal emphasis on why fault had a particularly severe impact on them, but we could decide that, looked at objectively, the impact was not worsened because of their circumstances.

Factors that could increase someone’s vulnerability and consequently worsen the impact of an organisation’s fault include, but are not limited to these (in part drawn from the protected characteristics set out in the Equality Act 2010):

  • financial circumstances
  • mental and physical health
  • disability (including physical, mental, and learning disabilities)
  • age (both youth and old age in different circumstances)
  • gender reassignment status
  • marital/civil partnership status
  • pregnancy or maternity leave status
  • race including colour, nationality, ethnic or national group
  • religion or belief
  • sex
  • sexual orientation
  • social support, or lack of (e.g. friends and family).

We will take account of any important factors that are relevant to the complaint. We will look at factual, objective matters.

We are not experts in financial, medical, or other types of personal assessment. We will not carry out detailed analysis to quantify the personal consequences of organisational fault in a particular case.

But we can take an independent, impartial view of consequential injustice. We can consider someone’s account about the impact on them of what went wrong. We can look, where relevant, at how the organisation had regard to the person’s circumstances, including any relevant vulnerabilities – both in determining fault, but also deciding what injustice this caused.

Mitigating factors

We can consider whether the actions of the complainant or any other relevant party may have lessened (mitigated) the injustice caused by the fault. For example, someone’s unreasonable behaviour may have caused delays dealing with a complaint.

Examples of this (but not limited to these) include:

  • unjustified delay in providing information requested by the organisation;
  • pursuing a complaint in unreasonable and excessive detail (taking account of any relevant reasonable adjustments);
  • unacceptable behaviour – such as rudeness or aggression (taking account of any relevant reasonable adjustments); and  
  • failing to take up an offer of provision that partly met the complainant’s needs while the organisation considered an application for a higher level of provision.

3.9 Cumulative injustice

Our approach is to try to remedy injustice from the faults we have identified. We do not speculate about future injustice that may arise from continued faults. These normally need to be addressed through a fresh complaint to the organisation when injustice is caused and then, if necessary, to us.

The organisational cost of dealing with an avoidable complaint is high (usually several thousand pounds for complaints where we decide to investigate). This cost of complaints to an organisation is often higher than the financial remedy we might recommend. This, alongside wanting to do the right thing, should therefore act as sufficient disincentive to inactivity for the organisations we investigate.

Where an organisation fails to act as it has agreed we will consider using a public interest report to highlight our concerns about non-compliance. Further details are set out in our Compliance manual. Where we see persistent problems with a particular organisation, we will call this out in annual letters, associated press coverage and through discussion with the organisation. This reflects the importance we put on effective complaint handling and resolution.

Sometimes we may design remedies to anticipate and address further delay taking restorative actions. For example, if we find a council has delayed putting in place special educational needs provision and we anticipate continued problems, potentially compounding injustice to the young person, we may anticipate this in a remedy. We could recommend an increasing monthly payment over time recognising the growing impact of a failure on the young person at a crucial stage in their education. We might also expect the organisation to carry out a fundamental review of the situation after, say, six months. We are unlikely to let such a recommendation for ongoing payments go beyond six months.

3.10 Holding organisations to account

Our approach to remedies needs to be seen in the wider context of our powers to publish public interest reports and annual letters that draw public attention to serious concerns about organisational actions. We can decide to use these measures to call out organisations where we see particularly significant fault, repeated failures to take corrective action, or other systemic flaws in effective complaint handling.

Our decision to publish a public interest report can, in some cases, form part of a remedy for injustice. By shining a light on serious mistakes causing significant injustice we help local decision makers, including local councillors and the wider electorate hold organisations to account. As many complainants tell us their main motivation is to ensure learning, the public interest report can be one of the most powerful remedies. Many of our ordinary final decisions also now receive publicity and may similarly offer a remedy themselves.

Similarly, when we send copies of decisions to regulators (Ofsted and Care Quality Commission) this is also partly a remedy. It recognises the impact on the individual, and in helps prevent reoccurrence of fault causing injustice to others. Regulators use our decisions to inform future inspection work.

3.11 Remedy payments and offsetting debt to owed to the organisation

Someone affected by fault causing injustice may still owe the organisation money. It is important our recommendations can meaningfully remedy injustice. Where we recommend a symbolic financial payment (e.g. for distress) we have set the amount to appropriately reflect the scale of injustice. That payment should not be offset against any debts. That is because doing so would stop the remedy from working as intended.

Alternatively, where the injustice was quantifiable loss the organisation can, legitimately offset the payment against any debt. See examples below.  

Example 1: The council repeatedly sent Mr X council tax bills by post without having due regard to the reasonable adjustments it had agreed to make in correspondence with him. This caused him distress. The council agreed to pay Mr X £250 to remedy this injustice. (Mr X still owes the council money for his council tax.)

It would not be appropriate for the council to deduct £250 from what Mr X owes it in council tax. It should pay him the money and calculate his council tax bills as normal.

Example 2: Because of the council’s fault, Ms Y did not get all the domiciliary care required by her care plan for four months. This caused her loss of service during this period. The council should pay her £500 to remedy this injustice.

Ms Y refused to pay her care bills during this period. She received some service but not all the care required. It is reasonable for the council to deduct the remedy of £500 from the amount she owes.

3.12 Any financial recommendation and the impact on a person’s financial assessment (such as adult social care)

Similarly, we may recommend a financial payment (for quantifiable loss or symbolic) for someone who is subsequently assessed by a council to determine how much they should pay for future services. This often involves the council considering their savings.

Our symbolic payments are usually small scale and will likely have minimal impact on such calculation. But as a general principle, councils should disregard savings that are the result of our financial remedies when carrying out such financial assessments.

The rationale is that our recommendations are to remedy injustice. A council using our remedy as part of its financial assessment is, effectively, giving with one hand and taking away with the other – thereby eliminating the potential to remedy injustice.

Example: The council seriously delayed carrying out a care act assessment meaning it took too long to arrange Miss Z’s care. As well as missing out on services this caused her distress. It should apologise, pay Miss Z £500 for distress caused and arrange a new assessment within one month.

In carrying out the subsequent financial assessment to decide how much Miss Z should pay toward her assessed care needs, the council should disregard the £500 it agreed to pay as remedy for injustice.

3.13 Remedying complaints where fault caused injustice to someone who has since died

If there is clear evidence of a quantifiable financial loss arising from the fault, we will normally recommend a financial remedy that repays that loss to the deceased person’s estate. For example where the deceased person:

  • paid care home fees which should have been paid by the organisation;
  • paid for a service but did not receive that service; or
  • was entitled to housing benefit but because of processing delays did not receive it before they died, and they met their rent responsibilities out of their own funds.

However, where the injustice is less tangible, for example distress, harm, risk or another unfair impact of the fault, we will not normally recommend a symbolic remedy in the same way as we might for someone who is still living. We do not expect an organisation to make a symbolic payment to someone’s estate. This is because these are remedies for injustice to that person and as such cannot have that effect once the person is dead.

Nor do we recommend paying a symbolic payment to a nominated charity or to help fund a memorial to the deceased person to remedy injustice to them. But such action could remedy injustice we have identified to the person bringing the complaint to us (usually a family member or next of kin). Recommendations to remedy personal injustice to others affected by the fault should be in line with this guidance.

3.14 Financial remedies during 'spending freezes’

Councils can sometimes be subject to spending freezes because their Chief Finance Officer has made a report under section 114 of the Local Government Finance Act 1988. This means the council can only spend money on discretionary matters subject to certain safeguards.

We sometimes encounter situations where councils subject to such measures refuse or are reluctant to agree to our recommendations for financial remedies. Our work and remedies for injustice are essential and fundamental parts of democratic accountability and proper governance.

Our recommendations are remedies for injustice that has already occurred because of past fault by the council. Persons affected should not be denied a remedy because of the council’s budgetary position. We will therefore continue to resist councils’ refusals to agree to financial remedies because they have frozen spending and/or issued section 114 reports.

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