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Social Justice another coronavirus casualty

What do you do if a local authority or NHS body decides to stop processing all complaints – even complaints which relate to matters of life and death or another fundamental human right? One option, you might think, would be to complain to the relevant ombudsman – if so, think again.

Local authorities and NHS bodies are telling complainants that they have stopped investigating complaints.  A recent NHS email has said:

Due to the ongoing COVID19 pandemic NHS England and NHS Improvement have recommended a “pause” to the NHS complaints process which allows all health care providers from all sectors to concentrate their efforts on the front-line duties and responsiveness to COVID19. 

A recent local authority email has said:

we have suspended the delivery of our complaints service. This includes the processing of all new and existing customer complaints from 24 March 2020 until further notice. Please do not reply to this email or submit any new complaints as these will not be dealt with.

 

If (as appears to be the case) the legal duty to operate a complaints’ system still remains (neither the regulations nor the primary statute have been amended by the Coronavirus Act 2020[1]) then what can one do when faced by a flat refusal by a social services department or NHS body to accept or investigate a complaint?

One could of course try complaining to the Local Government and Social Care Ombudsman (LGO) or the Health Services Ombudsman.  The problem is that these have also ‘shut up shop’: for the LGO announcement – click here and for the Health Services Ombudsman click here.

Of course all complaints processing must take into account the social distancing duties etc – but that doesn’t mean people can no longer read emails – and the ombudsman have long since abandoned the idea of routinely meeting with complainants. It is also the case that the NHS and social services have heavy commitments concerning the current virus emergency, but that cannot mandate a complete freeze on complaints handling.[2]  For the LGO the decision is even more troubling since it handles complaints concerning some councils (for example district councils) who don’t have any social care or healthcare responsibilities.

For the NHS, there is at least some guidance on this issue: guidance that has been misinterpreted by NHS bodies.  At the end of last month NHS England announced that it would be acceptable for some complaints to be paused – which is probably as far as it can go: only Parliament can mandate a complete ‘stop’ to the process.  The announcement stressed, however, that all complaints should be reviewed (‘continue to triage’ is the wording it uses) and not all should be paused – for example those concerning ‘patient safety, practitioner performance or safeguarding’ and that:

Providers should be mindful of their responsibility to support vulnerable people who may be distressed by work being paused on their complaint. In these cases, providers should continue to ensure appropriate action is taken where they can, as well as signposting to an organisation who may provide support.

Consideration should be given to complainants who, at the time of the ‘pause’, have waited an excessive amount of time for their response (specifically those who have waited six months or more). These should be reviewed to decide if and how these can be resolved to the complainant’s satisfaction.

 

Some of the LGO’s reports, completed prior to his decision to ‘shut up shop’ are just being published.  One provides an excellent illustration as to why the ombudsman should continue to work on relevant complaints.  It concerned a decision by  Bromley LBC[3] to take care proceedings in relation to a young person with cerebral palsy and other profound impairments.  He had been accommodated for almost 10 years by the council in a residential care placement under Children Act 1989, section 20.  He spent two weekends a month with his parents, who had always been fully involved in all decisions about his welfare and consented to his care.  They worked well with professionals and were able to make urgent medical decisions for him if and when these were required.

For whatever reason (most probably because the council misinterpreted the case law on section 20[4]) the council commenced care proceedings in the High Court.  The young person’s parents were outraged by this action and indeed the father was hospitalised for a condition brought on by ‘acute stress’.  Five months later the High Court dismissed the application, finding that the parents had provided exceptional’ care for their son throughout his life, posed no risk to him and that is was ‘a matter of very considerable regret that this case was brought before the court’.

Despite this judgment the council did not accept it was at fault.

Investigations of this kind by the ombudsman are not an expensive distraction.  The cost impact here – is the outrageous waste by Bromley LBC in pursuing misconceived High Court proceedings against ‘exceptional’ parents.  Any action by the ombudsman that draws attention to (and hopefully stops) behaviour of this kind will free up resources for councils to devote to the current crisis.  Learning from mistakes is something that needs to happen at all times – indeed it is especially important in times of national emergency.

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[1] Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 and the Health and Social Care (Community Health and Standards) Act 2003 (section 113 [NHS complaints] and section 114 [social services complaints]).
[2] Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 regulation 3 requires that (among other things) complaints must be dealt with efficiently … receive a timely and appropriate response etc.   Although ‘timely and appropriate’ is a wonderfully ambiguous phrase – a court would interpret it as requiring consideration be given to individual cases, such that a ‘blanket’ decision to ‘pause’ all complaints would not appear to be a proportionate response.
[3] London Borough of Bromley (18 012 239), 5 December 2019.
[4] In Re N [2015] EWCA Civ 1112 the Court of Appeal criticised councils for allowing young people to remain on section 20 where the council expected to apply for a care order: ie where they considered parental failings justified such action.