1. LGSCO generally takes the view that the body in jurisdiction is the one whose statutory function is being performed, whereas PHSO usually registers the case against the body that provided the service. This is based on the enabling legislation of each Ombudsman, as described below.
2. Section 25(6) and (7) of the Local Government Act 1974 provides for where an authority exercises a function entirely or partly by means of an arrangement with another person. Section 25(7) says:
   
   “action taken by or on behalf of the other person in carrying out the arrangement shall be treated as action taken (a) on behalf of the authority, and (b) in the exercise of the authority’s function”.
    
3. The key provisions of section 26 also make clear that the matters subject to investigation by the LGSCO relate to the exercise of an authority's functions or service failure in respect of a service which it was the authority's function to provide. In this way, the legislation ties LGSCO’s investigation process to the authority itself and as a result, LGSCO’s practice is to determine who the body in jurisdiction is based on statutory function. ‘Function’ within a local government context is a concept which embraces all the duties and powers of a local authority.
4. Part 3A of the Local Government Act 1974 applies directly to providers of adult social care. Section 34A defines who an adult social care provider is and also contains similar provisions to those in Part 3 in relation to the actions taken by another person on behalf of the adult social care provider.
5. PHSO’s enabling legislation gives it scope to treat the provider of a service as the body in jurisdiction, and so for example "independent providers" with no statutory function to provide a service, may fall within PHSO's jurisdiction. Section 2B(1)(a) of the Health Service Commissioners Act states:
   
   “Persons are subject to investigation by the Health Service Commissioner for England if (a) they are or were at the time of the actions complained of persons (whether individuals or bodies) providing services in England under arrangements with health service bodies or family health service providers.”
    
6. Thus, PHSO’s practice is to register complaints against the body that provided the service. There is also scope for "any other action" taken by or on behalf of a "health service body" to be investigated further to sections 2(1) and 3(1)(c) of the Health Service Commissioners Act.

Practical application

1. When a complaint is received that may be joint, JWA will conduct their normal checks on it, including for example, the time bar, whether another agency is better placed to consider the matter, consent, prematurity and the possible exercise of discretion.
2. In addition, they will consider which bodies should be treated as within jurisdiction. As part of this, they may consider whether there are any formal or informal arrangements between the NHS and the local authority and the nature of those arrangements.
3. Provided a local authority or NHS body has performed a function or made decisions that someone complains about (and subject to the other more general assessment considerations referred to above), the JWT will register a complaint against that body. For health cases, it may also register the complaint against a body that has a statutory function in relation to the actions complained of (for example where the complaint relates to section 117 because although CCGs contract Trusts to provide and coordinate the health element of aftercare services, the CCG retains responsibility for ensuring the quality of them). Responsibility for the actions complained of will remain under review throughout the life of the complaint, as new information may lead us to decide that other bodies, other than those originally complained about or identified, should be included in the complaint.
4. If there is a challenge about whether a local authority should be a body in jurisdiction, local authorities are granted a ‘general power of competence’ by section 1(1) of the Localism Act 2011 which states “A local authority has the power to do anything that individuals generally may do”. This allows local authorities to do anything not specifically prohibited by legislation, subject to public policy principles. Therefore, even where it is unclear at the outset whether a council’s actions arise from a statutory duty, the JWT can still investigate the actions of the council, where it is alleged that there was fault which led to injustice. This is because the LGSCO's jurisdiction relates to authority functions, and function goes wider than mere statutory duties because it also embraces powers.

Section 75 Agreements

Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. 

JWT will consider, in a complaint involving the NHS and the council, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Importantly, subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions. Therefore, a complaint will be registered against both bodies.

Where the NHS and council work together under partnership arrangements and the distinction between roles and responsibilities is unclear, we will not spend disproportionate time deciding individual responsibility. In these situations, if we find fault we will attribute it to the partnership as a whole and expect each body to contribute to any proposed remedies.

GP contracts

There are two types of GP contracts and the type of contract affects how we investigate complaints about GP’s:

• PMS (Personal Medical Services) – where the NHS England contract is with the individual GP so the complaint is against that GP, rather than the practice

• GMS (General Medical Services) – where the NHS England contract is with the practice, so the complaint would be against the practice as a whole

However, if the GP contract is a PMS contract, but the issue complained about is about matters which fall under a corporate responsibility, complaint handling, information leaflets or the actions of salaried /locum GPs, then the complaint should be registered against the practice rather than the specific GP. 

If the complaint is about a number of GPs at a practice and each of them hold an individual PMS contract, we should register the complaint against each of those GPs. 

If a GP has left a practice and we receive a complaint about their conduct at their former practice, we should contact them at their new practice to clarify the most appropriate method of communicating with them to ensure that we can gather the information we need, but without compromising the complainant’s personal data. 

NB: if we receive a complaint about a GP, but they stopped practicing 3+ years ago, the complaint is out of remit. 

Complaints involving Funded Nursing Care (FNC) or Continuing Health Care funding (CHC)

FNC

Where a complaint involves a service which should be funded by FNC, this would usually indicate that the provider would have been delivering that service as a health provider, even if the funding itself was not claimed. However, a decision about this will depend on the circumstances of each case and we may alternatively decide that the provider should be considered under the LGA 74, dependent on how the service was commissioned. Please see the subject guidance for further information

CHC

If we receive a complaint where services were provided by a care home and either self funded or commissioned and paid for by a council, but then CHC funding has retrospectively been applied, we would hold the original commissioning body and/or provider responsible. Please see the subject guidance for further information.