Feature

posted 9 Dec 2004 in Volume 10 Issue 1

All change for local authority complaints procedures

In the first part of this feature, RICHARD GROSBERG, chair of the executive committee of the Law Society’s Probate Section, provides a case study relating to local authority complaints procedures in the context of financial disputes relevant to the calculation of care-home fees for older people. This is followed with an examination by DAVID COLDRICK of the present and the new local authority complaints procedure to be introduced in April 2005.

Part one: “You can fight city hall” case study

I am not sure where the phrase “You can’t fight city hall” originates; my own recollection is in a ‘Peanuts’ cartoon from many years ago, but I am sure this was not the first reference. The statement has had universal application in respect of many government and other official bodies over the years, but I am pleased to say that my recent experience with Nottingham City Council shows that this is not always the case.

Background

Mrs Cross (names have been changed at client’s request) purchased her property from Nottingham City Council many years ago. She was a widow who had lived alone for many years and was quite self-sufficient. Her daughter, Mrs Evans, had married and moved away from Nottingham. Subsequently divorced,

Mrs Evans had a reasonable position working for a large company in the south of England.

In 1993, Mrs Evans decided that she would move back to Nottingham. Her prime concern was that her mother, although still self-sufficient, was getting more elderly. More specifically, she appeared to have lost her sense of smell, which led to a potentially disastrous episode when Mrs Cross left her gas cooker on but did not realise that she had done so. Mrs Evans purchased a property a few miles away from Mrs Cross and initially tried to persuade Mrs Cross to come and live with her. This did not prove possible, so Mrs Evans sold her house in January 1996 after moving in with her mother.

Mrs Evans also gave up her job in order to spend more time at home. She took a University degree, retraining as a psychotherapist and subsequently worked from home.

Mother and daughter had many and various informal discussions about transferring the ownership of the house. However, it was only in 1999 that these discussions became serious when Mrs Cross unfortunately became ill with a stomach complaint, which proved very problematical to resolve.

Finally, in March 2000, the house ownership was transferred into their joint names. Mrs Evans was then aged 53.

Unfortunately, Mrs Cross’s health deteriorated more quickly than anticipated. She was diagnosed as suffering from Alzheimer’s disease and, after a couple of weeks of respite care, she went into respite care again in October 2000 and decided that she would prefer to stay at the home, with the move being made permanent in January 2001.

Social services involvement

Mrs Cross had little in the way of savings and only had a basic retirement pension by way of income. It was natural, therefore, to seek assistance with the payment of residential care fees from the local authority.

The precise situation over the payment of fees appears to have remained somewhat unclear for a period of approximately 18 months. Eventually, in September 2002, Mrs Cross received a letter from Nottingham City Council Adult Residential Services asking for confirmation of the circumstances in which the property was transferred into joint names. It stated that, at the date of transfer in March 2000 “due to Mrs Cross’s age and deterioration in health, the need for residential care would appear to be likely”. The Council also informed Mrs Evans that a caution was being registered against the property to protect their interest in it.

Legal involvement

At that stage, Mrs Evans consulted me, having been referred by Age Concern. We responded in detail to Nottingham City Council, raising the following two major issues:

Whether the transfer in March 2000 could be considered as 'deliberate deprivation of capital' by Mrs Cross. Without going into the legal details, if it was a deliberate deprivation of capital then the local authority might claim it was still part of her ‘available capital’ for the purposes of the National Assistance (Assessment of Resources) Regulations (NA(AR)Regs) mean-test. That could affect her entitlement to a contribution from the local authority unless some relevant capital disregard under those same rules might be applied.
Whether the property should be disregarded in any event following Paragraph 7 of the Charging for Residential Accommodation Guide (i.e., the mandatory guidance to local authorities reflecting the disregard in NA(AR) Regs Schedule 4 Paragraph 2), where some discretion is given to the local authority to disregard the value of a property in which a third party continues to live in certain circumstances.

There was a further point about whether or not Mrs Cross had gone into residential care within six months of the transfer. The Council attempted to claim that because there had been periods of respite care within six months of the transfer, this meant that their ‘claw-back’ powers under Section 21 Health and Social Services and Social Security Adjudications Act 1983 were applicable. That would mean they could send the care-fees bill to the daughter as recipient.

The Council’s response seemed incredible at the time, and time has not diminished any feelings in this respect:

They referred to "several lengthy telephone conversations" with Mrs Evans. In other words, they were prepared to take verbal evidence from an unrepresented person and prefer it to the written evidence of that person’s legal representative;
From the above they concluded that, as Mrs Evans had apparently stated that the move to live with her mother was "mutually beneficial", this must have been to her financial advantage. In fact, the contrary was true. The two properties that Mrs Evans had sold would both have appreciated in value over the relevant period far more than the former council house in which she was living;
We had pointed out that if deprivation had really been her major purpose (which Mrs Evans was always adamant was not the case - it had been more due to her mother’s wish to provide security and ease-of-transfer to her daughter after her death), then it would have been far simpler for Mrs Cross simply to transfer the property directly and absolutely to Mrs Evans.
The claim was that the powers under Section 21 of the Health and Social Services and Social Security Adjudications Act 1983 (HASSASSA) applied from when the local authority assessed Mrs Cross as requiring residential care and had arranged accommodation. They concluded, therefore, that they could raise a direct assessment on Mrs Evans.
They noted my raising of their ability to disregard the property on a discretionary basis. Their view was that because steps to dispose of the property had been taken, they would as a matter of course not consider exercising their discretion.

We responded making it clear that we disagreed with all the contents of this letter and asking about the appeal process. The Council responded asking us to answer the questions they had raised (most of which were simply refuting our position) so that they could then ‘reaffirm the authority's position’.

We responded at length a few days later and again asked for information about the appeal process. This letter was dated 14 November 2002. By return of post, the Council stated that they would discuss the points we had raised with their legal department and would respond to the letter as soon as possible. The next substantive response came by letter, nearly one year later, on 17 September 2003.

Threatening of proceedings

On 17 September 2003, after a delay of some ten months, the Council reaffirmed their position, namely, that the transfer of the property into joint names amounted to deprivation and that they had powers to assess Mrs Evans, the daughter, under Section 21 of HASSASSA. This stated that they would issue proceedings against Mrs Evans directly.

Seven days later, we received a letter from the Council’s legal department asking whether we would accept proceedings on behalf of Mrs Evans, or if she should be served directly. The other important event that had happened in the interim was that Mrs Cross had unfortunately died in August 2003.

We discussed our response with Mrs Evans. Three weeks later, having not yet been able to put together an agreed response, we received a ‘chasing letter’ from the Council stating “a period of three weeks is more than sufficient to obtain your client's instructions”. Legal proceedings were threatened within seven days.

We responded immediately pointing out there had been a delay of ten months on behalf of the Council, and it was unreasonable therefore for them to be expecting a response so quickly.

We then spent some time with our client trying to calculate the precise balance we accepted would be outstanding if our own contentions were accepted. We concluded that this would give a sum outstanding of approximately £5,000.

We put this offer to the Council and it was rejected almost immediately, with the threat of proceedings being repeated.

Before we had a chance to respond, we were again contacted by the Council with details of the full balance they claimed was outstanding (nearly £23,000). We queried various figures in response and again by return had our arguments refuted and the threat of proceedings repeated.

Over the next few weeks, correspondence continued with the Council continuing to make threats and Mrs Evans having to meet with both myself and with my litigation colleagues who spelt out the potential costs that she could incur in the event that litigation was unsuccessfully defended.

Eventually, in early February 2004, we persuaded the Council that there had been no effective appeal against the original decision, merely reaffirmation and threatened litigation. We were then allowed to involve the Internal Complaints Procedure through the Council’s Service Standards Unit. Effectively, the complaints and the appeals process were somehow combined into one single process, which led to further unsatisfactory outcomes.

Mrs Evans attended the Service Standards Unit and prepared her own complaint. Unfortunately, this did tend to focus on dissatisfaction with particular individuals within the Council rather than the overall process. However, it was at least sufficient to enable the Service Standards Unit to instruct an independent investigator to prepare a report into the complaint. Although the local authority come out of this tale very badly overall, Nottingham City Council do at least involve an independent element in their complaints process at this relatively early stage, and this proved to be the saving grace.

The report, issued in late March 2004, made it clear that the Council had been completely wrong in refusing to consider whether the discretion to disregard the value of the property due to Mrs Evans still living there, should be exercised.

The most relevant quote from the independent investigator’s report is: "There is no doubt at all that Mrs Evans falls into the description contained in paragraph 7.007 (of the Charging for Residential Accommodation Guidance). Indeed she is completely stereotypical.”

Consequences of the report

When we received the report, which vindicated our position on the most important issues, we were advised that we could request a written response or have a conciliation hearing. We decided to opt for the conciliation hearing as we felt this would be a means of having all issues decided at the same time. The hearing was set for 29 April, approximately five weeks after the report had been issued.

Unfortunately, at the hearing, the Council came unprepared to give a definitive response. They stated that they would do so within 14 days. We expressed our extreme disappointment that the hearing was, effectively, a pointless exercise given the Council’s inability to confirm that they had received, accepted and would apply the report. Some 21 days later, the Council did finally confirm that they would reconsider the position and would exercise the discretion in Mrs Evan’s favour. This left us with two issues, which we had not felt appropriate to raise at the conciliation hearing, given that the Council had not made a final decision - compensation and costs.

Compensation and costs

We were advised that this would have to be decided by a further panel given that we were effectively not accepting the outcome of the previous report and hearing entirely. If the matters were agreed as a matter of principle, then an internal payments panel would consider the amounts.

The internal review panel was held in early July 2004. Mrs Evans had intended to attend without legal assistance (as she was mindful of the increasing costs), but unfortunately she was ill, so she asked me to attend and support her at the last minute. I informed all parties that I would be attending, but the hearing had the unedifying sight of the Council’s representatives attempting to object to my presence, stating somewhat bizarrely that: “The Council’s complaint process is not a legal process”. At the time, I thought of asking: if the complaints process is not a legal process, then is it in fact an ‘illegal process’? Instead, I decided that discretion was the better part of valour.

Effectively, I had to play little part in this further hearing. The information had been provided in writing before the hearing, and I realised fairly early in the proceedings that we were going to be successful when the chairman asked the council representative for his comments on the statement that: “this could all have been avoided if Mr Grosberg’s initial letter had been responded to appropriately by the Council”.

We were informed almost immediately after the hearing that Mrs Evans’ costs should be refunded - this was formally accepted by the Council and she also received a compensation payment, albeit a nominal one of £600.

Conclusion

It was clear from the outset that the Council had decided that Mrs Evans and her mother had acted inappropriately and should be penalised accordingly.

It was clear that the relevant representative who we were dealing with did not have sufficient legal experience and was not sufficiently supported.

They were put in the position of being ‘the one-eyed man in the kingdom of the blind’ in that no one else within the Council appeared to have any idea on the legislation at all.

The Council also had no idea as to the appropriate appeals process and, after ignoring the point for many months, decided that they would try to ‘brow beat’ us out of insisting that this be followed. It has to be said that they were very nearly successful.

However, due to the perseverance both from ourselves and Mrs Evans, we eventually were able to insist that the matter be considered independently and, at all stages, the independent consideration has been concluded entirely in favour of ourselves and our client.

What gives me great concern is that with this, and another similar case, I appear (somewhat incredibly) to have been involved in the only two such cases within the Nottinghamshire area.

I have a nasty feeling that many people in similar situations will have accepted the situation put to them by the local authority without challenging it. Indeed,

I am aware of one client who made the decision that to pay the additional fees claimed in respect of their parents’ residential care, rather than pay the legal fees for disputing matters on their behalf.

If one extrapolates this on a nationwide basis, it is a reasonable conclusion that many thousands (if not millions) of pounds may have been paid in residential care fees inappropriately and unnecessarily. I think it is the duty of all solicitors and other advisers involved in this area to ensure, where possible, that we do "fight city hall" and win.

Richard Grosberg, chairman of the Probate Section executive, is a partner and head of private client services at Nelsons Solicitors, Nottingham. He can be reached via e-mail: richard.grosberg@nelsons-solicitors.co.uk

Part two: Bringing a complaint against a financial assessment

The local authority complaints procedure

Readers will probably be unsurprised by the contents of the case study. How should such complaints really be handled and what are the changes being made? As Richard Grosberg rightly comments, legal advisers may well need to fight for the correct application of the procedures as well as the law. The reader may spot rather a large number of breaches of the current rules occurred in the case study.

An introduction to the local authority complaints procedure

Financial assessments often contain legally contentious aspects. The local authority may be perceived, by the resident or those responsible for handling their financial affairs, to have misunderstood either the facts or the law or both. Practical issues surrounding the entry of an older person into care can merge with disputes over funding and the emotions connected with the possible loss of the family home in long-term care fees. It does not make for the easy settlement of conflicts.

The most frequent problem areas in respect of the financial assessment involve the misapplication of the valuation rules and the notional-capital regulations by a local authority as in the case study.

Other problem areas include the failure to apply the 12-week property disregard and to generally fail to take account of all the facts. This situation is sometimes compounded by local authorities attempting to ‘brow beat’ both residents and their advisers with threats of premature and unlawful action for recovery.

It is important that any dispute over a financial assessment is dealt with as constructively as possible. Residents and their advisers should attempt to secure an agreed settlement of the issues before seeking to press the matter by way of complaint, and certainly before advancing in a litigious direction. The local government ombudsman and the court are both unlikely to consider cases where local authority complaints procedures have not been exhausted. It can be a frustrating process to engage with those procedures, and unfortunately a significant number of local authorities have proven to be inept in their administration of complaints procedures. In some cases, however, readers and their clients may be pleasantly surprised.

Concern over local authorities administering their own complaints procedures has been recognised by the Department of Health consultation exercise Listening to People and the Health and Social Care (Community Health and Standards) Act 2003. This amended the statutory social services complaint’s procedure. Local authority social services departments will retain responsibility for the local resolution of complaints, including initial consideration and investigation, but after April 2005, they will lose responsibility for the review of complaints about their adult social services functions. The ‘panel stage’ will pass to the Commission for Social Care Inspection (CSCI). See www.csci.org.uk It is hoped that it will ultimately secure a perceptibly fairer, more professional and quicker complaints-management process. See the draft regulations and guidance issued in October 2004 entitled, Learning from Complaints: Consultation on Changes to Social Services Complaints Procedure for Adults (LFC guidance) available from the Department of Health website: www.dh.gov.uk

This part addresses the local authority complaints procedure as it exists prior to April 2005, with a summary of the proposals for the post-April 2005 period. It is likely to remain a process with a similar ‘feel’ about it even with the involvement of the CSCI. It is, however, hoped that the level of independence and expertise operating at the panel or review stage/equivalent will be enhanced.

The legal basis of the local authority complaints procedure

Before April 2005

Local authorities must have a complaints procedure of the nature specified in the Complaints Procedure Directions 1990. They must also abide by the official guidance, The Right to Complain: Practical Guidance on Complaints Procedures in Social Services Departments, HMSO (1991).

After April 2005

For the situation after April 2005, the new Social Services Complaints Regulations 2005 are expected to be published in early 2005 by statutory instrument and the guidance, based upon the LFC guidance, will be mandatory being issued under Section 7 of the Local Authority Social Services Act (LASSA). The LFC guidance Paragraph 1.2 notes: "Only in exceptional circumstances may local authorities justify a variation."

Readers should ensure they obtain copies of both the updated/issued regulations and guidance, because the actual guidance may depart in some ways from the LFC guidance. Whilst that draft is unlikely to be dramatically different from the actual guidance, certain aspects may be altered.

What is a complaint?

The LFC guidance Paragraph 2.1.1 suggests that a working definition of a complaint is: "An expression of dissatisfaction or disquiet which requires a response."

Can the resident bring a complaint?

Before April 2005

The resident (or their financial representative) who is involved in a dispute over a financial assessment is a ‘qualifying individual’ under LASSA Section 7B. They may, therefore, bring a complaint. A relative, carer or legal representative who is supporting them can also bring a complaint in the resident’s name.

The ‘qualification’ arises in the present context because the local authority has a duty to provide suitable accommodation under Section 21 NAA 1948 (as amended) and there is a specific contention relevant to that resident.

After April 2005

The new Social Services Complaints Regulations 2005 appear set to adopt a detailed definition that is not dissimilar from the LASSA qualification. They also allow a resident’s ‘representative’ (including their executors/administrators after death) to bring a complaint.

Is there a time limit after which a complaint cannot be brought?

The Draft Social Services Complaints Regulations 2005 published in October 2004 indicates that there will be a time limit (for the first time) after April 2005.

The time limit is likely to be one year from when the matter, which is the subject of the complaint, occurred or within one year of the date on which the matter, which is the subject of the complaint, came to the notice of the complainant.

Who is in charge of complaints against local authorities?

Residents and advisers will be concerned to know who is in charge of handling the complaint especially once it reaches the formal stage.

Before April 2005

The local authority must appoint a co-ordinating officer, usually called a ‘complaints manager’, to address complaints. They must be a senior officer with “sufficient seniority to run the complaint's system and to ensure that complaints are dealt with, not only within the statutory times, but also with sufficient commitment.” (Local Government Ombudsman Complaint 94/C/2659).

Local Government Ombudsman Complaint 97/C/1614 found that the local authority official investigating his sub-ordinate’s action was not sufficiently independent. The complaint must, therefore, be dealt with under a dedicated system and it must be investigated by someone without a potential conflict of interest with the resident or the relevant officials whose decision is under scrutiny. This emphasises the issue of suitable seniority.

After April 2005

The LFC guidance indicates that every local authority will have to appoint a ‘complaints manager’ (if they have not already done so) with their key tasks being set out in the guidance. The LFC guidance stresses that they will be independent of professional line management, and will be directly accountable to the director of social services. According to the LFC guidance Paragraph 1.4.3, ‘conflicts of interest’ are always to be ‘kept in mind’.

The CSCI will replace the local authority ‘review panel’, and the LFC guidance states it will “provide a robust and impartial review of cases presented to them and consider the most appropriate route for resolution.”

It also adds that: “As the CSCI is independent of local authorities, this will address concerns expressed by some about the level of independence in the current procedures.” (LFC guidance Paragraph 1.5.1.)

LFC guidance Paragraph 1.5.3 notes that: “If people feel that the CSCI has not carried out any of its functions properly, including its role in the complaints procedure, they will be able to ask the Parliamentary Ombudsman to consider the matter further.”

Can local authorities financially intimidate the resident who is bringing a complaint?

Residents may feel that they cannot complain effectively if they do not ‘pay up’ even if they have a dispute over their liability to pay the assessed level of care fees.

The author considers that the Scots law case of Robertson v Fife Council [2002] UKHL35 confirms that the NAA Section 21 duty to provide suitable accommodation – for residents assessed as needing it – is paramount, and that both care assessment and care provision is needs-led. To suggest it is cash-led would, it is submitted, be astounding. The British state has long been inculcated with the principles of social democratic-style welfare provision. That is despite some encouragement for a greater role for market forces in that provision since the mid-1970s. Issues surrounding the resident’s financial contribution are therefore secondary to need and should be dealt with later as a secondary issue. The CRAG Paragraph 1.024 reminds local authorities that the responsibility to pay care-home fees is their own.

Local authorities should not attempt to leave a person with assessed needs financially ‘high and dry’ while a dispute is progressing through the complaints procedure. It is also submitted that to threaten legal proceedings without the matter having gone through the local authority complaints procedure is unreasonable and potentially unlawful.

The informal complaint against a local authority: Complaints stage one

Before April 2005

The resident’s complaint may be made orally or in writing. The Complaints Procedure Directions 1990 (CPD) Paragraph 5(1) state: “Where a local authority receives representations from any complainant they shall attempt to resolve the matter informally.”

The Department of Health’s practice guidance, The Right to Complain (HMSO 1991), note that ‘informally’ in this context does not mean that it is ‘casual’. The resident’s concerns and facts must be properly explored.

Formal complaints must be considered within a time limit. Informal ones need not be, and sometimes it appears that the informal stage may become unnecessarily extended especially if the local authority is uncertain of its ground.

It may be prudent for advisers to write to the complaints manager notifying them that, regrettably, it has not been possible to reach an informal solution if only to ensure that the formal stage is reached reasonably quickly. That is, especially where financial matters are pressing.

After April 2005

The LFC guidance calls this first stage ‘local resolution’. As soon as it becomes apparent that there is a real complaint, the resident/their representative should be given information about the complaint’s procedure and how to contact the complaints service. The issues will need to be properly addressed, as was previously the case. The complaint should be referred to the complaints manager who will have a role to play in deciding who should attempt to settle the issues.

Draft Regulation 15 imposes a ten working-day time limit on ‘resolution’. After that, the ‘formal investigation’ stage is engaged. That is unless the resident requests an extension to the ten working-day time limit or agrees to one.

The local authority can, with the agreement of the resident, engage conciliation, mediation or other assistance. But, it does not appear that the local authority can use this process to extend the ten-day resolution period without the resident’s agreement.

If no form of resolution is reached and the time limit expires, the formal investigation stage is engaged. It is not clear whether or not this is automatic.

Overall, the local authority has potentially less ability to string-out the informal process. If the resident is unhappy, they can effectively press the local authority on to the formal stage at any time.

The formal complaint against a local authority: Complaints stage two, ‘the registration stage’

Before April 2005: Procedures applicable to complaints stage two

Failing the satisfactory informal resolution of the complaint CPD Paragraph 5(2) states: “…the local authority shall give or send to him [the resident in this case] an explanation of the procedures set out in these directions and ask him to submit a written representation if he wishes to proceed."

Furthermore CPD Paragraph 5(3) states: "The local authority shall offer assistance and guidance to the complainant on the use of this procedure, or give advice on where he may obtain it."

CPD Paragraph 6(1) requires the local authority to respond within 28 days, or to explain why not and exactly when they will respond. The response: "shall in any event be within three calendar months of the representations."

The local authority can investigate matters in such a manner as it sees fit, but it should do so thoroughly with a proper regard to law and good practice.

Before April 2005: A suggestion to facilitate a solution at stage two

It may be appropriate for the adviser to encourage the use of a mutually instructed, independent third-party expert as part of the investigative process. That is, especially when complicated legal arguments are involved, such as those surrounding the notional capital rules.

The author suggests that such a person should be an independent expert and not ‘counsel for the local authority’. ‘Instructions to counsel’ may potentially be biased towards the result a local authority wants, and the local authority may also be expected to want to keep them a secret. The local authority should, it is submitted, investigate a complaint fairly and is not entitled to ‘take sides’. Use of an independent third party is probably essential to ensure fairness, and may also generally reduce the possibilities for unnecessary disputation and costs. Some local authorities, such as in the case study, use independent third parties as a matter of course to some effect.

Their complaints procedures are taken more seriously by themselves and by the complainants/residents as a result. Such an approach is commended in the Department of Health guidance. It is at this stage that a matter may most easily be resolved to mutual satisfaction or may alternatively become set on a much more litigious course.

Before April 2005: Notification of the result and reasons to be given at the conclusion of the complaints stage-two procedure

CPD Paragraph 7 (1)(a)-(c) may be summarised as requiring the local authority to ‘notify in writing the result of their consideration to the complainant/resident and ‘any other person who the local authority considers has sufficient interest in the case’. The ‘result of their consideration’ is not the same as requiring the local authority to give ‘reasons for the result of their consideration’.

It is hard to conceive that a just decision can be taken without the giving of reasons. There is, however, no general rule that reasons must always be given.

After April 2005

Where a complaint is not resolved under local resolution or the complainant/ resident has decided that they want a formal investigation, LFC Paragraph 3.7.1 states: "The Complaints Manager must ensure there is a formal written record of the complaint that the complainant has agreed is accurate."

The local authority complaints manager must then arrange a speedy and efficient formal investigation, the methodology of which must be explained to the complainant/resident, who must also be kept informed of progress throughout (LFC Paragraph 3.7.5).

An ‘investigating officer’ must be appointed to prepare a written report for adjudication by the local authority. They may be a member of the local authority or an outsider. The investigating officer should not be "in direct line management of the service or person about who the complaint is being made."(LFC Paragraph 3.7.4).

The formal investigation must be concluded, under Draft Regulation 17, by the issue of a report within 25 working days unless the complaint is ‘complex’, involving several agencies, or all, or some of the matters concerned are subject to a concurrent (e.g. disciplinary) investigation, or there is difficulty in the determination of its nature and substance, or the complainant/resident agrees to a delay.

Where the 25 working-days limit is not practicable or possible, the investigation must be completed with the issue of a report within three months of the complaint being made. The investigating officer’s report must be given to both the person complaining and to the complaints manager, with conclusions and recommendations. It must also be responded to by a senior service manager outlining action to be taken. The complaints manager is responsible for their implementation.

The report must advise the complainant that they can refer the matter to the CSCI for it to review if they are dissatisfied with its contents.

The formal complaint against a local authority: Complaints stage three, the complaints panel

Before April 2005: Activation of the formal complaints stage three

CPD Paragraph 7(2) states: "If the complainant informs the local authority in writing within 28 days of the date on which the notification mentioned in [7(1)] is sent to him that he is dissatisfied with the result and wishes the matter to be referred to a panel for review, the local authority shall appoint a panel (including any independent person) to consider the matter which the local authority shall refer to it."

The resident or their representative who is dissatisfied with stage-two proceedings must make their dissatisfaction known in writing and request a review panel examines the case.

Before April 2005: Time allowed for a local authority to affect a complaints review panel

CPD Paragraph 7(3) notes: “The panel shall meet within 28 days … to consider the matter together with any oral or written submissions as the complainant or the local authority wish the panel to consider.”

The practice guidance advises that the complainant/resident must be informed ten days before the panel as to its venue and time. They must also be asked to attend if they wish to do so, and be told the ‘name and status’ of the panel members.

Some local authorities appear to have little regard for time limits or for the information which the complainant/ resident should receive before a panel hearing is put into effect. Such procedural irregularities might be referred to the local government ombudsman who is primarily concerned with the way in which a local authority administers the decision-making procedures as opposed to examining the substance of the decisions reached. Unfortunately, that is of little practical use to the resident with a legal/financial grievance.

Before April 2005: Constitution of a complaints panel with an independent element

A panel must contain at least three people including an ‘independent person’. That person must not be a member of or be otherwise employed by the social services department (for example as a contractor or through a contractor) or a spouse of any such person. As page 56 of the CPAG Paying for Care Handbook (CPAG 2003) points out: “Often social services appoint a councillor as one member and an officer as the other. This can bring into question the independence of the panel. The guidance just says that at least one member has to be independent, so there is nothing to stop you asking for all the members to be independent of the authority.”

If a local authority refuses to appoint a fully independent panel, assuming it advises the resident/complainant of its constitution in good time, as it should, it is submitted that they should be asked to justify why. However, the independent element (of one) and the availability of judicial review (as a remedy) has been held to fulfil the legal obligation of the local authority (as a public body in respect of the civil rights being determined) to grant a fair hearing. See R (Beeson) v Dorset County Council [2002] EWCA Civ 1812. This Court of Appeal decision was a disappointing result for those seeking objective independence of the complaints process. It may be distinguishable upon the facts in other cases and the new CSCI-linked complaints panels may possibly be or become more independent.

Before April 2005: Legal representation for a resident/claimant at a panel hearing

If a local authority decides to exclude professional legal representatives from the panel hearing, as they can under the practice guidance, they cannot exclude their written submissions. They must also ensure that no local authority lawyer is involved in the deliberations apart from by way of similar submissions. See complaint 92/C/1042.

Before April 2005: Complaints panel difficulties with financial and legal issues

While panels are supposed to be as informal as possible, it appears that panel members are often unaware of the relevant basic legal position. That is, especially in connection with financial matters and that is a very important problem. For example, how can a panel make a decision on the facts if it applies the wrong legal test for ascertaining notional capital? It is submitted that it cannot.

This is a basic flaw in the existing local authority complaints system. Panel members, who lack the expertise of members of tribunals under experienced and qualified chairs, may have no practical choice but to accept the position of local authority legal advisers. That is especially given that the opinion of the local authority lawyers was probably the foundation of the original decision being reviewed. What else could they do? How can that not be considered to be biased and hence a ‘waste of time’? Hence the need for mutually acceptable outside expert opinions on financial and legal issues.

Panel chairs can adjourn proceedings, reject reports, and ask for further and better particulars from all parties. This may include independent reports. A limited degree of formality is appropriate and inevitable to ensure the panel’s deliberations on the facts contain an observably suitable level of legal understanding and thus a fair application of the law to those facts. The author considers the complaints panel approach to be inferior to a formal and fully independent, professionally chaired tribunal. However, failing this, an independent element with outside input can potentially improve the functioning of a panel and can also reduce the charge that it is simply a ‘local authority sham’.

Before April 2005: The complaints panel and the making of recommendations

CPD Paragraph 8(1) directs that: “…a panel… shall decide on its recommendations and record them in writing within 24 hours of the end of the meeting.”

This does not mean that matters must be rushed. In suitable cases, the panel chair should consider adjourning the panel for further and better particulars to avoid a pre-emptive decision being taken ‘that day’.

CPD Paragraph 8(2) directs that: “The panel shall send written copies of their recommendations’ to the local authority, the complainant/resident and ‘any other person who the local authority considers has sufficient interest in the case.” Some local authorities studiously ignore legal representatives. The resident/complainant should provide the local authority with a written request to ensure they receive notification in the same way as legal representatives do.

CPD paragraph 8(3) directs that: “The panel shall record its reasons for their recommendation in writing.” The policy guidance indicates that reasons must be given in the notification. If the panel is not unanimous, this should also be notified to the resident as part of the written recommendations. The reasons for the disagreement should also be put in writing.

CPD Paragraph 8(4) directs that: “The local authority shall consider what action they ought to take, and notify in writing the persons specified [in 8(2)] of the local authority’s decision and of their reasons for taking that decision and of any action which they may have taken or propose to take within 28 days of the date of the panel’s recommendation.” The resident must be notified of the panel’s decision within 28 days with reasons being given and details of the action, if any, it considers the local authority should take. The recommendations of the panel should be acted upon and not rendered ‘hot air’. In financial matters, if the initial decision was shown to be incorrect, the financial position of the resident/complainant should be rectified, which includes retrospectively rectified.

Residents might even be awarded compensation under the Local Government Act 2000 Section 92. It allows acts or omissions constituting (or which might constitute) maladministration (broadly, ‘getting it wrong’) to be rectified, as far as possible, by a payment or ‘other benefit’ to the person who has been ‘adversely affected’. Payments may be made for direct and indirect losses of any quantifiable nature (including time and lost interest), loss of amenity and distress.

The local government ombudsman recommended that £16,000 be paid to an accountant for his professional fees in pursuing Nottingham City Council in complaint 00/C/03176 in 2002. The cost of obtaining legal advice should also be recoverable in suitable cases. While a local authority might not appreciate paying for legal advice, the resident/complainant should be put in the position they would have been in without the error being made by the local authority. That should include a refund of legal fees.

After April 2005

At the time of writing, consultation and draft guidance upon the involvement of the CSCI is underway in the form of, An Independent Voice - Proposals for the Independent Review Stage of the New Social Services Complaints Procedure, Commission for Social Care Inspection (September 2004). See www.csci.org.uk

A CSCI review will replace the complaints panel stage. The CSCI review may be applied for by direct request or via the local authority after the local investigation stage is completed or, where a complaint has not been resolved after six months of the date on which the complaint was made under the local resolution procedures, the complaint can be referred direct to the CSCI.

Requests for a CSCI review must be in writing (which includes e-mail) no later than two months from the date on which the local authority letter of notification was sent (in the normal course of events).

A ‘gateway assessment’ by the CSCI may result in a referral back to the local authority if it is applied to prematurely or where the possibility for local resolution is identified. The CSCI must be sent the local authority’s file papers and the report resulting from the formal investigation.

Complaints meeting the relevant CSCI criteria may be reviewed by an independent complaints panel of three. Draft Regulation 25(1) states: “Any person who is an elected member or employee of a local authority is not eligible for membership of a panel”. This is a positive departure from the previous in-house complaints system.

The complainant can make representations at any hearing which is to take place. Detailed procedures concerning evidence and keeping the complainant/ resident informed will be put in place.

As an alternative to a panel investigation, there may be a CSCI investigation where the substance of the complaint and the local process for investigating that complaint, gives cause for concern. There may be a referral to the ombudsman with their agreement. Such a referral is unlikely in cases involving complex financial/legal issues.

There may be a decision of ‘no further action’ where consideration of the complaint through review will not provide a demonstrably different outcome. This ‘stone wall’ must be reserved for ‘obvious’ and possibly slightly vexatious cases and not those involving complex legal issues.

The CSCI determination of the proposed procedure for handling each complaint must include the views of the person making the complaint and any relevant circumstances (Draft Regulation 22).

It is submitted that issues involving financial assessments should involve a panel including at least one legally qualified person familiar with such matters. This should enable appropriate conclusions to be drawn from the facts and to ensure matters of law are properly addressed. The alternative would be for an independent legal report to be commissioned to help guide such a panel.

The CSCI report with findings, conclusions and recommendations will be given to the person making the complaint and the local authority. It must be completed as soon as reasonably practicable and not more than 20 working days from the date on which its terms of reference were finalised. Those terms must be set within ten working days of receipt of the transferred complaint. The procedure is thus designed to operate quickly with passage from complaint transfer to determination within 30 working days. Whilst welcome, it seems very short and there are concerns over how realistic the time frame is.

If the complaint remains, there may be a complaint to the parliamentary ombudsman about the way in which the CSCI has handled the issue. Otherwise, judicial review is the only effective remaining option.

Some conclusions in respect of the complaints procedure in the context of financial and legal issues

Disputes over financial assessments and similar legal type matters are unlikely to be settled adequately by the pre-April 2005 complaints procedure. Such cases are more likely to be settled through the litigation process. This is because the panel is not an independent tribunal with a legal standpoint of its own. And, it is likely to reach the same conclusion as the local authority.

The situation after April 2005 will largely depend upon the qualities of the CSCI panel members and/or the legal advice the CSCI obtains and its independence from local authorities is to be welcomed. It is hoped that it will not seek to divert legal matters to the courts as the local government ombudsman appears to do in cases involving complex financial/legal matters. It has greater potential than local authorities for making fair decisions but it should, it is submitted, ensure that the legal advice obtained by it is of the highest quality from relevant specialists. Its decisions will be subject to judicial review in the same manner as those made by local authorities are subject to judicial review. Time will tell.

David Coldrick is partner in charge of Wrigleys Solicitors' Sheffield office. He can be contacted on telephone: 0114 2675588 or via e-mail: david.coldrick@wrigleys.co.uk