Some aspects of the JWT’s work require different policies and/or procedures from those generally adopted either in LGSCO or PHSO. The policies developed and agreed by the Ombudsmen are as follows:

1. Out of time guidance
2. Guidance on merits
3. Clinical advice and the role of the Ombudsmen
4. Alternative legal remedy
5. Who is the body in jurisdiction in joint working cases?

 

Complaints where the matters complained about are ‘out of time’

Both the LGA 74 and HSCA 93 contain provisions about how quickly someone should complain to the Ombudsmen. In a nutshell, both Acts say:

We won’t look at complaints over 12 months unless there is an exceptional reason

Even then, we are very unlikely to look at historical allegations - for other reasons - irrespective of the seriousness of the allegations 

The Ombudsmen would normally expect a complaint to be made to them within a year of someone becoming aware of the events complained of, unless there were exceptional reasons for the delay.

Investigators should consider the following before deciding whether we should exercise our discretion over the time limit:

1. How old is the complaint? We must identify whether the complaint is in or out of time.  
2. Why might we exercise discretion? If the complaint was made outside of the time limit what are the reasons for delay (e.g. could include ill health of the complainant, or time taken for organisation to respond to complaint);
3. Previously premature cases. Where a complaint is put again to the Ombudsmen having been closed before as premature, it needs a fresh consideration of the time limit. We take into account whether we had warned the complainant about our time limits.  Note: we will usually take the view that a complaint to one of the bodies in a genuinely joint case will meet our requirement for it to have been made locally.
4. Part in time and part out of time? Different parts may be in or out of time, e.g.
   1. New issues form part of a complaint following an earlier premature decision (such as concerns about the intervening complaint handling). We may need to separate out the application of the time limit to the new issues and the original substance.
   2. The substance of a complaint could be out of time, but a complaint about an appeal process or a second tier handler could be in time.
   3. We should look at each of these elements carefully and take a view on whether they are separate for the purposes of the time limit.
5. Too old for an effective investigation?  Is this a historical complaint? Historical allegations are where so much time has elapsed since the fault complained of occurred that an investigation is likely to be impeded by the passage of time.

In all cases we will consider each complaint on its merits and take account of the unique circumstances of each case. However, we should be cautious about starting an investigation into historical allegations. The main reasons are:

• Evidence: The further away in time an investigation takes place from the events to be investigated, the more difficult it may be to establish the material facts with reasonable confidence. In older cases we are less likely to be able to gather sufficient evidence to reach a sound judgement. Even if some evidence is available, we would need to be particularly careful to ensure it is reliable, and provides a full picture.
• Context: In many cases we cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was fault.
• Remedy: In historical cases it is likely to be more difficult to achieve a meaningful remedy, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties.

Given the above factors, we should not dis-apply the requirements of s26B (LGA 74) and section 9(4) (HSCA 93) in historic cases unless we have very clear reasons for doing so that satisfy the following two tests:

• We are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and
• We are satisfied that the complainant could not reasonably be expected to have complained sooner.

Whilst not fettering our discretion or creating a blanket policy, a presumption will exist against exercising discretion unless there are clear and compelling reasons for doing so that satisfy both of the above tests.

The considerations relating to reliable evidence, historical context, and realistic chances of a meaningful remedy have even greater importance when considering historical allegations of serious wrongdoing and should not be set aside because the complaint relates to significant injustice, including allegations of abuse and neglect. The seriousness of the allegation is not the primary test in such cases and does not remove the obligation to consider the two tests above in relation to all historic cases.