If you are not happy with an assessment decision, or a failure to make a decision there are a number of ways you can complain. You can use:
There is a one year time limit for considering complaints although this can be extended in certain circumstances.
There are three stages to the local authority complaints procedure - local resolution, investigation and the review panel stage.
The social services department looks at your assessment again. Complaints need not be in writing, but it is a good idea to do so and keep a copy. You must make your complaint to the local authority complaints manager. This should take 20 days but can take longer in certain circumstances.
At this stage an investigation officer is appointed who carries out a full investigation and completes a report. This should be completed in 25 days, although in some circumstances it can be extended to 65 days. A decision will be sent to you. If your complaint is still not resolved you have 20 days to request a review.
These are heard by a panel consisting of three people; two of which, the chair and one other, must be independent of the local authority (ie not an elected member or an employee). The third member can be an elected member but not a local authority officer.
The complaints hearing must take place within 30 days of the date the local authority received your request for a review. The review panel should produce a report within 5 days of the hearing. The local authority has 15 days to decide what action, if any, to take in the light of the review panel’s recommendations.
Under section 5 of the Local Government and Housing Act 1989, local authorities must appoint a Monitoring Officer to report to the authority on any proposal, decision (such as one relating to a community care assessment) or omission made by the authority or any of its committees or officers which has given rise to or is likely to give rise to:
This report must then be sent to all members of the authority who have responsibility for the decision. The authority must then consider the report within 21 days, and the decision cannot be put into effect until the meeting takes place.
Northern Ireland has a two stage complaints procedure - the informal stage and the independent review stage.
You must make your informal complaint to your health and social services trust. Independent reviews are carried out by your local health and social services council.
The Scottish complaints procedure is similar to that in England though the time limits for resolving complaints vary. Guidance in Scotland requires a review panel to provide written recommendations within 56 days.
The local authority has 42 days to decide what action, if any, to take in the light of the review panel’s recommendations.
Wales has a similar three stage complaints procedure to that in England. Local resolution compliants do not have to be made to a complaints manager. Stage 2 complaints do not have to be formal but can be resolved in another way - for example through mediation. Stage 2/investigation stage complaints should be completed within 25 days.
If you are still not happy, or if the council has not responded to your complaint within 3 months, you can ask for an independent panel. A panel should be arranged within 20 days of your request, a report of the finding produced within 5 days, and a decision by the authority within 15 working days. The panel is independent of the authority and consists of people selected and trained by the National Assembly of Wales.
Your local councillor or MP may also make representations and enquiries on your behalf at any stage of your complaint though it is probably better to contact them as early as possible. If you don't know the name of your councillor or MP or how to contact them you can find out from your local library or Town Hall. You can also contact the House of Commons Information Office on 0207 219 4272 to find out the name of your MP, including Scottish Parliament and Welsh Assembly MPs, or visit www.upmystreet.com/commons/l/.
Under Section 7D of the Local Authority Social Services Act 1970 the Secretary of State for Health has the power to step in where a local authority fails to comply with its statutory community care duties and has "no reasonable excuse" for this failure. This power has never been used and it is unlikely that it will ever be used except in the most extreme circumstances.
However if someone wrote to the Department of Health alleging that a local authority had failed to comply with its statutory community care duties it is likely that the Department would in turn write to the local authority for an explanation. This might force the local authority to look into the complaint once more.
The ombudsman can investigate your complaint where there has been "maladministration". This can include:
Normally your complaint must have arisen within the previous 12 months and you are expected to have tried every other available remedy, such as using or trying to use the local authority complaints procedure. The ombudsman's complaint form also asks you if you have contacted your local councillor.
You complain to a different ombudsman for each country.
You can find links to these on the British and Irish Ombudsman Association at www.bioa.org.uk.
You can also apply to the courts for a judicial review if you think that a decision was made without properly following the law. If you are successful the court will normally overturn the unlawful decision or action. You will need a solicitor if you want to apply for judicial review.
You may be able to complain on the grounds that a decision contravenes your human rights. For more information about this see Factsheet F1 - human rights act. You will need to seek legal advice.
Where a council has failed to act legally in a way that has affected you as an individual you may be able to obtain legal damages through the courts. You will need to seek legal advice in these cases.
You can find out more information about the complaints system in Disability Alliance's Disability Rights Handbook at www.disabilityalliance.org/drh33.htm. This provides information about the different types of residential care, as well as charging for care.
You can obtain copies of our factsheets, or order our publications, by contacting Disability Alliance on 020 7247 8776 (voice and minicom) or by fax on 020 7247 8765.
April 2008
