Local Government and Social Care Ombudsman – jurisdiction, powers and ‘assessment code’
Introduction
In this final 2024 issue of our children’s rights legal digest we focus on a series of recent assessment decisions of the Local Government and Social Care Ombudsman to draw attention to the criteria which determine whether a complaint made to the Ombudsman is accepted or not. We share an overview of the legal framework which governs the Ombudsman’s jurisdiction and powers, and the ‘assessment code’ applied by the Ombudsman to each submitted complaint to decide whether it can be investigated (‘the jurisdiction stage’ tests) and whether it should be investigated (‘the discretionary stage’ tests). By spotlighting some of the recently ‘rejected’ complaints, we hope to raise awareness of the criteria which shape decision-making at the complaint assessment stage and, in turn, strengthen effective advocacy with and on behalf of children and young people who wish to make a complaint to the Ombudsman.
The legal and policy framework
Local Government Act 1974 The role, functions and powers of the Local Government and Social Care Ombudsman are set out in the Local Government Act 1974. The Ombudsman has the power to investigate complaints about actions by or on behalf of local authorities (and some other bodies). The matter/s being complained about must concern maladministration (poor performance of administrative duties) or service failure (failings in how a service is provided or failure to provide a service). A complaint must be made by “a member of the public who claims to have sustained injustice in consequence of the matter” being complained about or an authorised representative (such as an advocate). Complaints must be made in writing “before the end of the permitted period”, i.e., within 12 months from the day when the person affected first had notice of the matter. However, the Ombudsman has the power to disapply the ‘permitted period’ requirement. In determining whether to initiate, continue or discontinue an investigation, the Ombudsman has the power to apply discretion. Before accepting a complaint, the Ombudsman must be satisfied that the matter "has been brought [by the complainant or their representative] to the … authority to which it relates and that that authority has been afforded a reasonable opportunity to investigate … and to respond” [i.e. the complaint has been considered under the Children Act 1989 or other local procedure] or that in the specific circumstances of the complaint it wouldn’t be reasonable to expect this to have happened. Exclusions: matters not subject to investigation: The Ombudsman is prevented by the 1974 Act from investigating matters if the person affected [by maladministration or service failure] has the right in law to appeal to a tribunal or government minister, or to go to court. This requirement, like the 12-month ‘permitted period’ may be disapplied by the Ombudsman if they believe there are good reasons why the person affected should not be expected to do so. There are some important additional exclusions: the Ombudsman is prevented from investigating matters which are the subject of pending or ongoing court proceedings (civil or criminal) and some other specific matters, like personnel issues (e.g., disciplinary issues) and operation of public transport. For more information, please visit the Ombudsman’s ‘What we can and cannot look at’ web page or, for more detailed information, consult the Ombudsman’s ‘Guidance on jurisdiction’.
Equality and human rights duties The Ombudsman constitutes ‘a public authority’ for the purposes of the Human Rights Act 1998 and the Equality Act 2010. This means that the Ombudsman must act compatibly with the rights in the European Convention on Human Rights (section 6(1) Human Rights Act 1998) and comply with the statutory equality duties, such as the duty to make reasonable adjustments.
The Ombudsman’s ‘assessment code’ - internal policy (published) The ‘assessment code’ (updated in July 2021) is applied to decide which complaints the Ombudsman can accept. It is applied to each complaint received by the Ombudsman, regardless of who made it and what it is about. There are no blanket exclusions, and each case is decided “based on its own unique circumstances”. At the assessment stage, decisions are based on “the facts presented to [the Ombudsman] by both the complainant and the service provider [e.g., local authority]”. Where needed, the Ombudsman can make “brief factual enquiries” to enable a “fair and balanced assessment”. No investigation takes place at this stage. According to the ‘code’, the expectation is that the complainant makes clear three things: a) What they believe the service provider has done wrong b) The injustice they claim to have suffered as a direct result [of this wrong], and c) What they are looking for to put the matter right (i.e., the remedy being sought). The assessment code is then applied in two stages: the jurisdiction stage and the discretionary stage. Stage one: ‘The jurisdictional stage’ Where none of the legal restrictions set out in the Local Government Act 1974 apply (see box above), four conditions must be met before a complaint is accepted to be investigated: 1. The complaint is made by a member of the public or by a suitable representative on their behalf; 2. Local complaints procedures should be completed (*but note the option of an early referral to the Ombudsman – see Annex 3 of statutory guidance, ‘Getting the best from complaints’); 3. The complaint should be made in time (*unless there were good reasons for the delay); 4. Where someone could get a resolution of their complaint from another body, the Ombudsman expects people to use that route. If a complaint does not pass ‘the jurisdiction stage’ of the assessment, it will be closed. If it passes, the stage 2 ‘discretionary’ tests are applied. Stage two: ‘The discretionary stage’ There are four tests at stage two: 1. The Public Interest Test – This assesses the level of wider public interest arising from the individual case. 2. The Injustice Test – This assesses the level of personal injustice the complainant claims to have been caused as a direct result of the actions or inactions of the service provider. 3. The Fault Test – This assesses the scale and nature of the fault, that the complainant alleges has occurred and whether it is directly linked to the injustice claimed. 4. The Remedy Test – This assesses how likely it is that the complainant will be able to achieve a meaningful outcome to the complaint. To find out more about the four tests applied at stage two of the assessment process, read the code in full here:https://www.lgo.org.uk/information-centre/staff-guidance/assessment-code?chapter=2.
Examples of recent assessment decisions:
- London Borough of Richmond upon Thames (24 007 201)
A father complained to the Ombudsman about: (1) breaches by the council of a court order regarding contact with his children and (2) failings by the council in how it managed some aspects of these contact arrangements (including communication by the council, quality of reports about his children and transport arrangements).
Regarding point (1) relating breaches by the council of court ordered contact arrangements, the Ombudsman said: “Only a court can resolve matters of disputed contact with children or breaches of court orders. We cannot make any recommendations about adherence to court orders”.
Regarding point (2) relating to the management of contact arrangements, the Ombudsman agreed that this related to maladministration and service failure and therefore it fell within the Ombudsman’s jurisdiction. This complaint point had been considered by the council under the Children Act 1989 procedure and the complainant was offered a financial remedy (£500) “for various failings in the management of his contact”. The Ombudsman, in its assessment decision, concluded that “While these [issues] are separable from matters of alleged breaches of court orders, if we had investigated and found these errors by the council, we would not have been likely to recommend a greater sum. There is thus no good reason to investigate them”.
In paragraph 3, ‘The Ombudsman’s role and powers’, the Ombudsman said:
“We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide: we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or there is no worthwhile outcome achievable by our investigation [section 24A(6) of the Local Government Act 1974]”.
“The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court [section 26(6)(c) of the Local Government Act 1974]”.
In summary, the Ombudsman concluded: “We will not investigate Mr X’s complaint about the Council’s management of contact arrangements with his children and breaching a court order. The Council has accepted fault in the administration of contact and offered Mr X £500. Investigation by us would be unlikely to lead to a better outcome. The enforcement of contact arrangements can only be resolved by a court, and it would thus be reasonable for Mr X to use his right to return to court if he seeks enforcement”.
- North Tyneside Metropolitan Borough Council (24 009 364)
The complainant, referred to as Mrs X, complained to the Ombudsman about the content of the council’s ‘section 7 report’ – this is a report ordered by the family court based on section 7 of the Children Act 1989 which is designed to assist the court with decision making in relation to any question regarding a child’s welfare.
The Ombudsman refused to accept this complaint stating:
“The law prevents us from investigating what happened in court, which includes the content of reports a council submits as part of proceedings. For this reason we cannot investigate [the] complaint [Schedule 5, paragraph 1 of the Local Government Act 1974]”.
- Birmingham City Council (24 008 149)
Two joint complainants, referred to in the decision as Ms X and Ms Y, complained to the Ombudsman about several local authority failings: (1) the council’s initial refusal to review their son’s education health and care (EHC) plan, (2) delay in decision-making regarding changes to the EHC plan, and (3) a month-long delay in providing a copy of the final EHC plan.
At the point of complaining to the Ombudsman, the complainants were “happy with the contents of the EHC plan” but said they “suffered three months of unnecessary uncertainty as a result of the council’s actions”.
The Ombudsman refused to accept this complaint, concluding:
“We do not investigate all the complaints we receive. In deciding whether to investigate we need to consider various tests. These include the alleged injustice to the person complaining. We only investigate the most serious complaints. I appreciate Ms X and Ms Y suffered some uncertainty as a result of the actions they complain about but their uncertainty is not significant enough to warrant investigation at this time”.
- West Sussex County Council (24 003 598)
The complainant, referred to as Mrs X, complained to the Ombudsman about: (1) delays connected to her child’s education, health and care (EHC) needs assessment and (2) errors by the council when it decided not to conduct it, and, in connection with both points, the frustration and uncertainty these failings caused her.
Setting out the Ombudsman’s role and powers (paras 3-6 of the assessment decision), the Ombudsman said:
“The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers [section 26(6)(a) of the Local Government Act 1974]. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide: further investigation would not lead to a different outcome, or there is no worthwhile outcome achievable by our investigation [section 24A(6) of the Local Government Act 1974]”.
In its refusal to accept the complaint, the Ombudsman said (paras 9-10):
“We cannot investigate Mrs X’s complaint about [the refusal] to conduct an EHC needs assessment … or the basis upon which the Council made its decision. This is because Mrs X has appealed the decision to the SEND Tribunal and the law says we cannot investigate. We will not investigate Mrs X’s complaint about delay in the EHC process. The council sent the decision notice two weeks late. In its complaint response, it apologised for the delay. An investigation by the Ombudsman is unlikely to achieve any additional outcome, and therefore we will not investigate this complaint”.
