All investigations (except complaints withdrawn at a very early stage) will have a draft decision sent to the BinJ and any others involved, and to the complainant.
The draft decision is a fundamental step in ensuring that we make just and fair decisions. Its purpose is to test the evidence that we are relying upon with both parties in an even-handed way and to give an opportunity for the BinJ and complainant to comment on our thinking before a final decision is made. To be meaningful, the draft decision should be written when we have gathered enough evidence to come to a sound conclusion on the complaint. The test is that we have gathered sufficient information and all key lines of inquiry have been completed. It should not generally be used as a vehicle to test one party’s evidence with the other before the investigation has been finished. Draft decisions will therefore usually be prepared after contact and enquiries have been made with both parties.
Unless it is proposed to publish a report on the complaint, draft decisions will be issued in the form of a draft statement of reasons. The accompanying letter to the BinJ and any others involved must provide a clear invitation to comment, and we must carefully consider any comments or further information received before coming to any final decision.
Where in our draft decision we are critical of the actions of an individual or an organisation, we will require the BinJ to show the individual or organisation the draft decision and invite their comments. We will require evidence that this has been done. Comments should generally be returned to us via the BinJ and it will be open to the BinJ to add its own comments on what has been written. Alternatively, comments from companies, organisations and individuals who are acting on behalf of the BinJ and former employees of the Council may be made directly to the Investigator and copied to the BinJ. In the event that the author does not want the BinJ to see the comments, the Investigator will consider the reasons given in deciding what weight to attach to the comments.
The normal principle is that draft decisions should be sent to all parties at the same time.
- All parties should be given the same timescale for a response (at the Investigator’s discretion, but generally 10 working days).
- Any party may request an extension of time, which can be agreed or refused by the Investigator without reference to the other party/parties. The Investigator should consider whether the complainant has any particular needs that might be supported by extending the time limit as a reasonable adjustment.
If we issue a new draft decision, the same principles apply.
There may be some situations where, in the particular circumstances of the complaint, the complainant, or a BinJ, the Investigator does not feel it would be appropriate to send the draft decision simultaneously to all sides. An example might be where the proposed remedy is far from the complainant’s expectations, but the BinJ might also be very resistant and circumstances are not entirely clear. The Investigator should discuss the complaint with their Assistant Ombudsman and seek approval to depart from the norm, and record this in Notes & Analysis.
The language used in the draft decision should generally be authoritative, with firm findings. The summary and draft decision sections, however, should be more tentative, making clear that the views expressed are based on current information. This makes more transparent any changes to our decision in the light of responses to the draft: the draft decision is not a done deal and a further draft decision may be needed. It will need to be updated for the final decision.
We publish our decisions on our website. It is important that they are fit for purpose and reflect a common style and layout.
The draft decision statement sets out our understanding of the complaint, showing what we have done in our investigation, including a fair and balanced summary of the facts, and a clear analysis which leads to our view. It will be changed to reflect comments and new information, but will normally form the basis of the final decision so must conform to our standards and guidance on the structure for statements which can be found in the Statement of reasons manual and the Style Guide. The ECHO template provides the structure for the draft decision statement. The template can be adjusted, but only in accordance with our standards on statements.
The draft decision statement should not include:
• anything to identify an individual
• unnecessary information of any kind (but especially unnecessary personal information).
The draft decision statement will have a covering letter which makes it clear that a final decision has not been made, invites comments by a deadline and has a clear message about what will happen next (including explain to each party what will happen if they do not respond).
Where the provision of personal information is necessary (particularly sensitive data such as data relating to racial origin, political opinions, religious or other beliefs, physical or mental health, sexual life or criminal convictions), and release of that information may have an adverse impact on the complainant, or would not otherwise be known to the BinJ, it should be contained in the covering letter.
There is Casework Policy Forum guidance on this topic - see here for more details.
We should not normally name anyone involved in a complaint apart from the BinJ concerned unless it is in the public interest to do so. We want to protect the anonymity of the complainant and other individuals (including other residents in a care setting and/or staff who are not at a senior level) unless it is absolutely necessary to include particulars that are likely to identify them for the effectiveness of the statement/report. Care will need to be taken about what level of detail to include about the complainant.
It would not normally be in the public interest to name third parties or contractors (such as bailiffs’ firms, recycling companies and the like), as it may have the effect of undermining our default position that the ultimate accountability always rests with the commissioning body. But we should make reference to the contract and the contractual arrangements, as this can help to explain what has happened.
We may name a third party or contractor where it is in the public interest to do so or the body to be named falls within the jurisdiction of either the LGSCO or another Ombudsman scheme in its own right. Some examples would include a county council providing a schools admission service or highways advice; the Highways Agency; the Environment Agency; CAMHS; and any organisation providing a ‘health’ function. Unless it is a Care Provider, an Assistant Ombudsman or other senior manager should be consulted before we decide to name a third party or contractor.
There is Casework Policy Forum guidance on this topic - see here for more details.
Care Providers are BinJs responsible for providing the care subject to complaint (such as BUPA), while care locations essentially mean the individual home (or the local provider of domiciliary care). In Part 3 and Part 3A decisions, we routinely name the BinJ in statements/reports, unless we consider it to be inappropriate, for example because the organisation is operated by an individual/sole trader or naming it might identify an individual and/or the complainant.
For Part 3A cases we should also name the care location (that is the individual care home or agency) in statements and reports. For Part 3 cases, where the Council commissions the care, and we identify fault in the actions of the Care Provider, we should name the both the provider and location even though the Council is the body in jurisdiction. In these cases we must afford the Care Provider an opportunity to comment as detailed in the enquiry letter. We should also mention where the care home or agency is located if this is not already clear as there are often a number of similar organisations with the same name providing the same service. This ensures people viewing our website will be clear about which care home or agency we are dealing with.
Investigators also need to make sure the location details of any Care Provider providing services on behalf of a Council are recorded in ECHO. This means our data and how we present it, through published decisions and our Annual Review of Adult Social Care complaints, reflects the reality of how services are provided. It also means we provide correct data to the Care Quality Commission.
It is reasonable for senior staff to expect their posts to carry a greater level of accountability and responsibility than others. This applies to both council officers and others (particularly given, for example, that care home managers are named on the CQC website). It is therefore generally reasonable to identify senior staff by using their job titles. However, we must consider the nature of the information likely to be revealed and the nature of the position and responsibility of the person and position in question.
If the complainant does not respond to our draft decision we can proceed to a final decision. There is no need to chase a positive response. Similarly, if we do not receive a response to our draft decision from the BinJ and we are not making recommendations, we can proceed to a final decision even if we have found fault.
However, it would be difficult for the Ombudsman to demonstrate that he is “satisfied with action which the authority concerned have taken or propose to take” if action is recommended and there is no positive agreement from the BinJ. If we are making recommendations we need the BinJ’s confirmation of their agreement. An oral agreement is acceptable, but written confirmation is preferable, especially if the recommendation could be contentious. If agreement cannot be secured and we remain satisfied the recommendations are necessary, we will need to remind them of our powers to issue a public report.
We must be able to show we have properly considered arguments put forward and changed our stance as appropriate. But if we are satisfied with our findings and recommendations, we should not generally negotiate and should instead pursue compliance to the full extent.
Where the BinJ agrees to carry out our recommended actions but disagrees with our findings we can still issue our final decision. The BinJ has the option to request a post decision review just as the complainant can. We should, though, consider whether the BinJ’s stance suggests they are likely to repeat the fault in future and whether, because of this, a further recommended service improvement to prevent repeated fault is required. If so a second draft can be issued to both parties. We should also consider whether the ‘What I Found’ section of the statement of reasons should refer to the Council’s response to an earlier draft, and to our subsequent additional service improvement recommendation. The BinJ can then either agree the recommendation or refuse, triggering our consideration of whether a public interest report is required.
The Compliance Manual sets out the Ombudsman’s approach where the BinJ does not agree our recommendations, at draft stage, and where the Ombudsman nevertheless decides to report. The manual also sets out the Ombudsman’s approach to non-compliance with recommendations in a public interest report or a decision under Part 3A.
Where we are proposing important changes to the outcome of a draft decision, we need to take account of the views of both parties on the changes to ensure we are seen to be fair. So, for example, if we propose to change a financial remedy or to change a decision reason because of the comments from one party, we need to raise this with the other before issuing the final decision. This may be done by discussing the reasons for the proposed change with them and taking account of their comments or, if the proposed changes are of considerable importance, issuing a further draft for comments.