The Local Government Ombudsman (LGO)

Ridouts Law

The Health Act 2009 has amended the Local Government Act 1974 and created a new
power which will allow the LGO to investigate complaints made by "self funders" about
services that are registered under CQC's essential standards.

The LGO expects to deal with complaints about services such as fees and charges from
care homes, personal care at home, poor quality care and supported living schemes.

This will allow adults who arrange and pay for their own care or have a personalised
budget, to access an independent complaints service in the same way that those who have
care arranged and funded by local authorities.

Anyone who claims to have suffered an injustice relating to a care service is entitled to
complain. This could be:

  • The person using the care service
  • Their family or other representatives
  • Others affected by the actions of a care provider.

Some complaints will be against the local authority that has arranged and is managing the
care. Others will be against the care provider, when there is a private contract between
the provider and service user. Some complaints will span the two. The Ombudsman's
new and existing powers combined will enable them to deal with complaints that involve
the actions of both local authorities and care providers.

Complaints can be made on behalf of someone else. The person using the service should
usually make their own complaint unless there is good reason why they cannot. It must be
clear that the person complaining on the user's behalf has consent from the service user
to act for them, or legal authority to do so.

When there is a complaint, the first step is to inform the local authority or care provider.

The Ombudsman will normally only look at a complaint after the council or care provider
has had a reasonable opportunity to consider and respond to it.

The Process
The investigation team will first check that the care provider has had a fair opportunity
to deal with the complaint and identify if the injustice suffered by the complainant is
great enough for them to continue with an investigation. Before making that decision, the
Ombudsman will usually speak with the person affected or their representative.

During the investigation
If the complaint is pursued, the Ombudsman will write to the care provider setting out
the issues and asking for comment. They will also gather information needed to reach
a decision. This will be done by written questions and answers, asking for copies of

documents and records, inspecting records and documents at the provider's premises,
and telephone or face-to-face interviews. The Ombudsman will also refer to recognised
standards, such as essential regulatory requirements or established guidance

All investigations are conducted in private and individuals will not be identified in any
published information.

Once the Ombudsman have sufficient information about a complaint they will write
to both parties setting out their findings, explaining their initial view with reasons, and
inviting comments. All comments received are considered and taken into account before
making a final decision.

Final decision
The Ombudsman has the power to include recommendations in a final decision about
remedying the injustice and preventing it from occurring again. When they make
recommendations the care provider must consider them and explain what action will be
taken in response.

A copy of the final decision and reasons is sent to both parties. The decision can only be
challenged by applying to the High Court for judicial review.

If the care provider does not respond or the Ombudsman is not satisfied with the
response, they can require an 'Adverse Findings Notice' to be published.

How long does the process take
This will vary depending on the seriousness or complexity of the matter, and how long it
takes to gather the information that the Ombudsman needs.

The Ombudsman will make a decision on a complaint and the investigator will keep
providers informed of progress.

If the Ombudsman finds that there was a fault that caused injustice, they will recommend
suitable ways to resolve the matter. This could include an apology, changes to the service
or financial redress.

The Ombudsman says that it wants to use the lessons learned to improve care delivery
for everyone. They plan to publish information about important issues that are identified
through their investigation of complaints.

The Ombudsman can also inform the Care Quality Commission (CQC) and local
authorities about the complaints made to them and the decisions they make.


Disclaimer

The Ridouts Legal Bulletin is not intended as a substitute for seeking specific advice or as a statement of the law. If after reading this you identify that you may have a legal problem, please contact us for tailored advice.