This process only applies where all the normal working processes have already been completed, the investigator has found fault leading to injustice and yet one or more of the bodies in jurisdiction is refusing to fully comply with our recommendations.

General principles

1. Reasonableness: Where a body in jurisdiction has a difficulty in complying with one of our recommendations, in the first instance, we use our best endeavours to understand why and negotiate a reasonable outcome
2. Thoroughness: Where negotiation is unsuccessful, we will escalate matters to try to bring about compliance, using the full extent of our powers where it is necessary to do so, recognising that our recommendations are not legally binding on bodies in our jurisdiction.
3. Transparency: Where a body in jurisdiction remains non-compliant with one of our recommendations, we will ensure that this situation along with the contextual information which has led to it, are clearly explained to the public and all relevant third parties.
4. Proportionality: Both Ombudsmen will be notified of non-compliance arising from investigations undertaken by the joint working team and the reasons for this.  Decisions will be made on a case-by-case basis and we will only escalate matters where both Ombudsmen agree that it is appropriate to do so.

The process to follow

There are three broad types of bodies in jurisdiction which might be involved in a joint working complaint: 

• a health body under the Health Service Commissioner Act 1993 (the 1993 Act); 
• a local authority under the Local Government Act 1974 (the 1974 Act); 
• an independent adult social care provider under the Health Act 2009 which inserted a new Part 3A into the Local Government Act 1974 (Part 3A of the 1974 Act).  

The different legal frameworks which apply to each will influence the action we take.

In every escalated case (i.e. irrespective of how many different types of body are involved in the complaint and against which of these we find fault), the team will prepare a decision statement using the standard agreed format used for all joint cases.  This names each of the bodies in jurisdiction but, generally, all other identifying details, including the name of the complainant, are anonymised.

Identical copies of this decision statement will be issued to each of the bodies in jurisdiction (and the complainant), in line with our standard process.  However, the powers under which we issue the statement (which are set out in the covering letter) will differ according to the circumstances of the case:

1. If a council is found to be at fault and will not comply with our recommendation(s), we will explain to council that the decision statement constitutes a report under s30 of the 1974 Act.  The report will list all the bodies involved in the complaint but will be explicitly clear about where the fault lies.  In line with LGSCO’s standard approach to reports, the joint team will inform the council that it is obliged to publicise the report within two weeks under s31 of the 1974 Act and if it does not comply we will issue a further report.  LGSCO will work collaboratively with PHSO to publicise the case in an appropriate way.  The other body/bodies which are not at fault will be kept updated and we will respond to any queries or concerns they may have.
   
   If, after this has happened, the local authority persists in its refusal to comply, we will draft another statement setting out what has happened.  This will be issued to the local authority as a further report under s31 of the 1974 Act. LGSCO and PHSO will, once again, work together to publicise the case in an appropriate way.
    
2. If a health body is found to be at fault and will not comply with our recommendation(s), we have two options:
   
   a. Explain to the health body that we have significant concerns about the non-compliance and we are issuing a joint report under s18ZA of the 1993 Act and s33ZA of the 1974 Act.  We have judged that it is in the public interest for our joint report, highlighting the health body’s decision not to comply with our recommendations, to be made available to others under s14(2I) of the 1993 Act and we have therefore decided to publish the joint report.  The report will list all the bodies involved in the complaint but will be explicitly clear about where the fault lies.  LGSCO and PHSO will work together to publicise the case in an appropriate way.  The other body/bodies which are not at fault will be kept updated and we will take account of any concerns they may have.
   
   b. Alternatively, if the health body’s refusal to comply is of particular importance, we will draft a special report under s14(3) of the 1993 Act setting out what has happened and lay this before Parliament.  The format of the report and collaboration between LGSCO and PHSO regarding publicity will apply as above.
    
3. If an independent adult social care provider is found to be at fault and will not comply with our recommendation(s), we will follow the relevant processes set out under Part 3A of the 1974 Act, leading to an adverse findings notice being published against the independent provider.  The same principles as set out above will apply in such a situation.
   
   If, after we have exhausted the powers available to LGSCO and PHSO, the relevant body (or bodies) in jurisdiction still refuses to comply, we will give consideration to referring the matter on to the relevant Parliamentary Select Committee and/or Government Department, setting out the approach we have taken and the basis for our ongoing concerns.