2.1 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.

2.2 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.

Apologies for children and young people

When parents and carers act as a complainant, or representative, on behalf of their children, we will generally recommend an apology is sent to the parents/carers, to recognise the injustice to the whole family.

But there will be circumstances where we decide a separate apology to a child or young person is needed. This might be where parents/carers have asked for this as an outcome; where the child/young person has been directly involved in the complaints process; or where the child/young person is of an age and capacity to benefit from the value of an direct apology for any injustice they have suffered.

In situations where we consider an apology is warranted, we will make clear and specific recommendation that the organisation provides an apology directly to the child/young person, in a manner that is suitable for their age and capacity, and which takes account of any disability related adjustments.

There will be situations where we decide contact with the child/young person is more likely not in their best interests. This might be where the child/young person was not involved in the complaint, and where an apology for historic failings might have a negative impact on their current circumstances. In such situations, we can recommend that an apology is placed on the child/young person’s records for them to view at a later date.

2.3 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.   

2.4 Service improvement recommendations – Preventative remedies

We can make recommendations to prevent future injustice to others, which we call ‘service improvement recommendations’. 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 an audit or regulation body. Instead, we look at organisations through the powerful lens of individual service user experience. However, we should be mindful that the experience of an individual might not reflect the wider picture. Service improvement recommendations should therefore be considered when we are confident that our findings point to an organisational failing that has the potential to affect a wider group of people. They should not be used to sanction the one-off mistakes of individuals.

We are also 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.

Our expertise are rooted 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.

Types of service improvement recommendations

We categorise service improvement recommendations in three different ways:

Procedure or policy change/review

In cases where we find an omission or error in a procedure or policy, we can recommend the organisation makes the changes necessary to bring it in line with the relevant standards. When we make these recommendations, we should be specific about the exact issues that need changing. We should not recommend organisations carry out sweeping reviews of a policy simply because we’ve found fault with a service – we must be able to point to a specific error or gap in policies and processes which needs addressing.   

Examples include:

• The Council will review the timescales in its published complaints policy, considering them in light of the complaints code.
• The Council will produce a joint service agreement and/or operating procedure which clearly identifies how each service contributes to delivering disabled facilitates grants, and ensures services work together to provide a joined-up and timely service to Disabled people.
• The Council will create a procedure or guidance for considering homelessness applications where children might reasonably be expected to reside with the applicant when domestic abuse is a factor. This is to ensure officers appropriately consider if there is good reason to seek information from an alleged perpetrator and assess the risks to the applicant of doing so.

Training and guidance to staff

There will be occasions where we find evidence of fault in the actions of an organisation, even though its policies and procedures are sound. In such cases, we can recommend the body carries out staff training, or produces guidance that highlights the relevant lessons from our decision. We should ensure that our recommendations clearly specify the learning we expect to take place.

A recommendation to provide training should be based on findings or concerns that there is a widespread failure by an organisation to understand the standards it should be working to. We need to be careful to avoid recommending onerous training to staff based on a mistake made by an individual. We should therefore look at other decisions we have made against the organisation, as well as exploring the need for these recommendations as part of our draft decision process. 

We will also see situations where an organisation’s faults are a consequence of systemic pressures which are outside its control. In such circumstances, there will limited value in recommending that organisations remind staff about their responsibilities. These types of recommendations should be used where it is within council’s ability to fix the problem.

Examples include:

• The Council has agreed to ensure all frontline staff understand the Council’s duty to make reasonable adjustments and know how to identify, record, and act on a request for reasonable adjustments. It will provide training or guidance as needed.
• The Council will issue guidance to complaint staff to ensure that they understand the discretion under the Children Act complaints procedure to investigate historic complaints out of time and that they must show how they have considered this discretion.
• The Council will provide guidance to relevant staff to ensure they are aware of and understand the Department for Environment, Food and Rural Affairs guidance on the use of fixed penalties for domestic waste receptacle offences.

Organisation-led improvement plans

There will be circumstances where we find fault, but where the root cause of the issue is unclear to us. This reflects the fact we are not experts in the design and delivery of Council services. It is important we recognise when that is the case, and avoid imposing unhelpful recommendations onto an organisation based on our limited knowledge of how it operates. We should also remember that it is not our role to get to the root cause of why things have gone wrong – our role is simply to highlight fault, and assess any consequential injustice.

In such cases, we should put the onus on the organisation to take the lead in identifying the issues that led to the fault, and putting steps in place to fix them. Again, we must be specific about what we expect any action plan to achieve, with reference to our findings of fault.

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.

Our intranet guidance – Council decisions making and our investigations – provides more detailed information about how councils make decisions, and the role of scrutiny committees and other key senior officers.  

Examples include:

• The Council was at fault because a safeguarding investigation found a council commissioned Care Home failed to carry out some of a resident's care in line with their care plan. The Council has agreed to create an action plan targeting the areas the Care Home still needs to improve in and provide the Ombudsman with evidence all actions have been carried out.
• The Council will produce an action plan to identify ways of improving the waste service on the affected road and to prevent fly-tipping and bins from becoming overfilled. The action plan should include timeframes for any action to be taken and the Council will provide us with a copy of this action plan. This will help to ensure steps are taken to improve the waste service, and will help to ensure all actions are taken in a timely manner to ensure progress.
• The Council agreed to produce an action plan for addressing the backlog of medical priority assessments and reviews. This should set out time-limited targets for how the Council will reduce the backlogs and include arrangements for the plan to be monitored by a suitably senior council officer.
• The Council will offer to update relevant scrutiny committee on the progress made towards ending the delays for complainants using the statutory children’s social care complaints process, using an action plan, that is regularly reviewed. This is to ensure improvement is monitored by senior officials.

SMART recommendations

Service improvement recommendations should, like all our remedies, be SMART (specific, measurable, relevant, achievable and time-limited): in practice, this means:

• specific – we will often recommend the organisation reviews practice or policy, or 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, with reference to the findings of fault that we want to prevent occurring in future;  We should also recommend 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.
• measurable – it must 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 – our recommendations can make it clear what evidence we expect to see from a council (such as minutes/report/etc);
• 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. We must avoid creating unrealistic standards for organisations to achieve – our expectation is that they follow ‘good’ standards of administrative place.  To help achieve this, we should frame 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.
• relevant: there must be a clear connection between our findings of fault and any service improvement recommendations. Where we have found service failure (faults that are beyond an organisation’s day-to-day control), it is unlikely that service improvements are relevant. And we should not made superficial recommendations for actions such as staff training based on issues which were beyond the officer’s control (such as asking a council to remind staff of its responsibilities to provide suitable accommodation, in a situation where the lack of suitable housing stock is national issue).
• 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 three to 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.

Using our data

When considering making a service recommendation, investigators must 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 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.]

2.5 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 statement.

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.

2.6 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 injustice 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. This includes harm caused by loss of service;
• 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.

We should normally recommend single symbolic financial payments that we consider adequately remedy injustice caused to individuals as a consequence of fault. We should avoid making duplicate financial remedies for the same injustice to the same person.

For example, we should not normally separately remedy harm caused by loss of service alongside recommending a separate symbolic payment for distress. This is because we generally factor in the ‘distress’ caused by ‘loss of service’ in our suggested financial remedies for distress.

There will be exceptions to this normal rule – for example where someone has suffered particularly severe injustice from poor complaint handling, as well as suffering harm from loss of service. Where we decide this is the case, we should explain our justification for recommending separate payments, giving reasons for each in our decision statement.

We frequently recommend different types of remedy for the same injustice. For example that a council should apologise for distress caused.

Where more than one person has suffered injustice as a consequence of fault, we can make two payments. For example a family member who is forced to step in to provide care and therefore caused injustice because of a failure to provide the adult social care required by someone’s plan.

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.

2.7 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.

2.8 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.

We will not normally recommend financial remedies (for example “£250 per month until x happens”) go on for more than six months. We only check for compliance during this limited time. And the severity of injustice that is the consequence of continued fault beyond that point will potentially have significantly changed.

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.

2.9 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.

2.10 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.

2.11 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.

2.12 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;
• 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.

We may also recommend a financial remedy that repays to a deceased person’s estate where they paid for a service they did not receive. However this should only apply in clear cut circumstances where paid for services have not been provided. For example this could be where someone has paid for five months care but only received four months.

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. We should also not normally recommend payment to an estate where we have to make a judgment about the quality of care provided. 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.

2.13 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.