All the evidence we have considered in coming to our findings must be recorded in ECHO.
The weight to be given to any evidence is a matter of judgment. A statement that something has happened is evidence and should be treated as such. But documentary and contemporaneous evidence may be given greater weight than unsupported statements. The circumstances surrounding the evidence, for example the independence of a witness or the reasons why something may be claimed, or its likelihood, should also be taken into account.
Some evidence may be uncontentious and can be treated as fact without any further corroboration, but a BinJ should generally be expected to provide documentation to back up substantive contentious claims, and we should ask to see such evidence, unredacted. The complainant may also be expected to provide documentary evidence they may reasonably hold or could reasonably provide, even if this may be sensitive, such as bank statements showing payments made.
Sometimes a complainant may send us recordings of telephone calls or conversations with BinJ staff who are not aware they are being recorded. If a complainant secretly records information there is nothing in law to stop us using it as part of our decision-making process if we consider it to be relevant. If we do not think the evidence is relevant to the complaint it should be returned to the complainant and removed from the ECHO record. In the interests of fairness, any recordings which we are considering should be disclosed to the BinJ for comment when we make our enquiries. We should also tell the complainant at the earliest opportunity that we will share the evidence with the BinJ.
A regulatory inspection (for example by the CQC or Ofsted) gives a snapshot of certain aspects of an establishment or organisation at a given time. It does not prove that, because an organisation ‘passed with flying colours’ three months ago, failures in a service could not happen. Similarly, a satisfactory inspection made just after an alleged event took place does not automatically mean the failures complained of could not have happened. Services to individuals can always go wrong, regardless of how good a regulatory inspector may consider an organisation or service provider to be.
An inspection report may show areas where an organisation or establishment has been required to improve, for example in record keeping. We may in turn find fault on similar grounds. However, Investigators must come to their own view about whether an alleged failure did or did not happen, based on all the evidence available to them. We should not give the appearance we took or might have taken an inspection report into account in reaching our decision about whether or not there was fault, as this could be seen as predetermination.
Where a complaint is upheld, we can refer to the findings of regulatory inspections, but should be clear that we are noting that information having already made our own decision, and after an independent consideration of the facts.
The findings of regulatory inspections may be particularly helpful for:
- guiding our service improvement recommendations - so we complement and build upon the insights of other agencies, rather than conflict with or duplicate what they have already suggested;
- deciding whether it is in the public interest to issue a report. Particularly where we find fault with something that has already been drawn to another agency’s attention.