Complaints about service provision (document)

Summary of legal requirements for complaints procedures 

The statutory basis for the complaints procedures in social services is section 7b of the Local Authority Social Services Act 1970 (inserted by section 50 of the NHS and Community Care Act 1990) for adults, and the Children Act 1989 for children and young people.

The statutory complaint procedures under the NHS and Community Care Act and the Children Act first came into effect in July 1992. The intention of these acts was to give access to a statutory procedure to anyone who is likely to want to make representations, including complaints about the actions, decisions or apparent failings of a social services department. They also allow any other person to act on behalf of the individual concerned. The procedure excludes only those for whom the authority has no power or duty to provide a service.

The legislation and guidance sets out three stages following receipt of a complaint:

• Informal (problem solving) stage
• Formal stage
• Review by independent panel

The Department of Health also sets six key objectives. A social services department's complaints procedures should:

• Provide an effective means of allowing service users or their representatives to complain about the quality or nature of social services
• Ensure complaints are acted on
• Aim to resolve complaints quickly and as close to the point of service delivery as is acceptable and appropriate
• Give those denied a service an accepted means of challenging the decision made
• Provide, in defined circumstances, for the independent review of a complaint
• Give managers and councillors an additional means of monitoring performance and the extent to which service objectives are being achieved.

The procedures for adults and children's complaints do differ as can be seen below. This information also contains some extra detail as to the statutory basis. 

Adults

Section 7B of the LASS Act 1970 stipulates that local authorities must comply with any directions given by the Secretary of State about the procedure for considering representations and action to be taken in consequence. The Complaints Procedure Directions 1990, which set out details of procedure, contains the directive This was amplified in the policy guidance, Community Care in the Next Decade and Beyond, published the same year and further advice on good practice in handling complaints was issued by the Social Services Inspectorate (SSI) in 1991. This procedure applies to representations about all social service functions, other than those to which section 26 of the Children Act applies (see below).

Key features of the LASS Act procedure are as follows:

• A designated officer to co-ordinate complaints
• A three-stage approach, emphasising the resolution of complaints
• Informally at first
• A second stage at which a complaint becomes registered (and becomes formal)
• A third stage, if the complainant is dissatisfied with the local authority's response and, within 28 days, notifies the authority accordingly in writing, requesting a panel. The panel should be chaired by an independent person
• A registered complaint to be dealt with in 28 days, or up to three months if this is not possible, the complainant to be informed of reasons for delay
• The local authority is expected to publicise its procedure and monitor it in operation.

Children

Section 26 of the Children Act 1989 applies to complaints about a local authority's functions under Part III of the Act. It sets out certain elements of this complaints procedure in primary legislation. The local authority must (Section 26(4)) ensure that at least one person who is not a member or officer of the authority takes part in the consideration of the representations and any discussion about action to be taken. Section 26 further requires authorities to have 'due regard' to the findings of those considering the representations, to notify the complainant of its decisions and to publicise the procedure. The term 'due regard' is not defined, and it is left to the discretion of the local authority whether or not it acts upon the findings. It would be liable to judicial review if it had acted unreasonably by disregarding any recommendations.

Further details of the procedure are set out in the Representations Procedure (Children) Regulations 1991. Additional guidance was provided in the Children Act Guidance which accompanied its implementation.

Key features are:

• A designated officer to be appointed to co-ordinate consideration of complaints
• An independent person (IP) to be appointed when representations have been received
• A response to be given within 28 days (no extension of time)
• A review panel to consider unresolved complaints within 28 days of being notified of such. This panel must include an independent person who can be the same as who originally considered the representations
• Local authorities are urged to promote these procedures in a user friendly way that is accessible to children and young people.

Whilst the two procedures are broadly similar, there are significant differences which will be apparent from the above summary.

Complainants under either system who remain dissatisfied with the outcome can pursue their complaints to the Local Government Ombudsman.

The detail of the changes made by the Health and Social Care Act will be implemented in April 2005. The Adoption and Children Act provides for the appointment of an advocate for children in care and young people leaving care in the complaints and representation process.

Complaints are an invaluable source of information about the performance of care service providers and are viewed positively by the Commission for Social Care Inspection. The CSCI has a duty to monitor the quality and effectiveness of local arrangements operated by care service providers, and to use its powers and procedures to investigate complaints. From April 2005, CSCI will also assume responsibility for the independent review of complaints concerning local authority social services departments. The CSCI discharges its existing regulatory complaints responsibilities under the Care Standards Act 2000, and from April 2005 under the provisions of the Health & Social Care (Community Health & Standards) Act 2003, with respect to complaints about social services.

The CSCI is also subject to independent scrutiny by the Parliamentary Ombudsman and has a procedure for responding to complaints about its own performance and service provision.

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