Interim Casework Policy and Guidance (CP&G)
Section 2: Customer Services
Understanding the complaint [link]
Is the complaint within remit? [link]
Is the complaint properly made? [link]
Has local resolution been completed? [link]
Second tier complaint handlers [link]
Is the complaint still premature? [link]
Direct referral of health complaints [link]
Specific discretion [link]
Suitability of complainant [link]
Time limit [link]
Alternative legal remedy [link]
What more can we reasonably achieve? [link]
Other dispute resolution forum appropriate [link]
Other discretionary reason to decline [link]
Linked to lead cases [link]
Resolving cases in customer services [link]
Requesting papers [link]
Reaching a decision [link]
Approving the decision [link]
Communicating the decision [link]
Customer survey [link]
Complaints about us [link]
Decision letters signed by the Ombudsman [link]
Joint working cases [link]
Protective marking scheme [link]
Managing case files [link]
Understanding the complaint
1. Customer Services will check if all sections of the PHSO complaint form (if
used) have been completed. If not then they may make enquiries to fill in those
gaps or return the form to the complainant for it to be completed.
2. Customer Services will, in most cases, contact the complainant (or if
appropriate, their representative) as part of their consideration in order to
understand what is being complained about, the injustice claimed, the remedy
sought (including if they are seeking financial remedy) and why they are
unhappy with the organisation’s reply to their complaint. This is also an
opportunity to give information about how the case will be handled, to manage
expectations (for example, if the complainant is seeking an unrealistic remedy)
and to discuss any reasonable adjustments that might be needed.
3. Ideally this should be done by phone, but the complainant’s communication
preferences and availability may mean that email or letter contact needs to be
used instead. If contact does not take place at this stage (for example, if the
complainant cannot be contacted within a reasonable timescale) then the
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complainant (or their representative) will be contacted at the start of any case
that is accepted for investigation.
Is the complaint within remit?
4. If a complaint is out of remit then the Ombudsman is unable to investigate it.
5. The Visualfiles ‘out of remit’ categories are listed below. An explanation of
each, including relevant links to Legal Team briefing notes is available [link].
• Actions abroad other than consular functions
1 (parliamentary cases only)
• Administrative action taken on judicial authorit
y2 (parliamentary cases only)
• Alternative legal remedy achieved
3
• Body out of jurisdiction
4
• Commencement/conduct of civil/criminal proceedings
5 (parliamentary cases
only)
• Commercial/contractual matters
6
• Criminal investigation or national security
7 (parliamentary cases only)
• Exercise of judicial/legislative functions
8 (parliamentary cases only)
• Ineligible complainant
9
• Out of remit – other
• Pre-1996 clinical matters
10 (health cases only)
• Private healthcare (not NHS funded)
11 (health cases only)
• Public service personnel matters
12
• Three year rule
13 (health cases only)
6. This guidance does not cover all possible complaints within these categories,
many of the parts of the law referred to have exceptions and conditional notes.
For more information or advice, please refer to the full text of the relevant law
[links to 1993 and 1967 Acts] or line management in the first instance and, if
necessary, to the Legal Team [link to Legal pages].
1 Sections 6(5), Schedule 3 Paragraph 2, 1967 Act
2 Schedule 3, Paragraphs 6A, 6B and 6C, 1967 Act
3 Section 5(2), 1967 Act; section 4, 1993 Act
4 Schedule 2, 1967 Act; section 2, 1993 Act
5 Schedule 3, paragraph 6, 1967 Act
6 Schedule 3, paragraph 9, 1967 Act; section 7(2), 1993 Act
7 Schedule 3 paragraph 5, 1967 Act
8Section 5(1), 1967 Act
9 Section 6, 1967 Act; sections 8, 9 and 10, 1993 Act
10 Health Service Commissioners Amendment Act 1996, section 14; Commencement Order SI
1996/970 Article 2
11 Sections 2 and 3, 1993 Act
12 Section 10, 1967 Act; section 7(1), 1993 Act
13 Section 9(4A and B), 1993 Act
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7. If an entire complaint falls within one (or more) of these reasons then the case
should be declined for investigation. Each of the categories listed above is
selectable on Visualfiles as an enquiry closure detail.
Is the complaint properly made?
8. If the complaint is within remit then consideration can be given to whether it
has been properly made. If a complaint has not been properly made then it
cannot be accepted for investigation.
MP referral (parliamentary cases only)
9. In parliamentary cases a complaint must be made in writing to a Member of
Parliament and then referred to the Ombudsman by an MP, with the consent of
the person aggrieved and a request from the MP that we investigate the
complaint.
14 The complainant is required to make the complaint to the MP in
writing, but there is no requirement for the referral by the MP to the
Ombudsman to be in writing.
10. If a complaint is received without an MP referral and it looks as if local
complaints procedures have been completed then we should explain to the
complainant that they have three months to obtain such a referral. During that
time the enquiry is not closed but is given ‘
Refer back for MP referral’ status.
We should provide help to complainants in those circumstances by, for
example, providing the name and contact details for their constituency MP. We
should also, if appropriate, provide information about the time limit on
complaints being referred to PHSO.
11. Where the complainant fails to obtain a referral by a MP within the three-
month period then the case should be declined as
‘Withdrawn – failed to obtain
MP referral’.
12. If a complainant makes contact without an MP referral and it is clear that the
relevant complaints procedure has not been completed then they should be
told about the need to obtain an MP referral and about the need to attempt
local resolution first (including any second tier complaint handler). We should
also, if appropriate, provide information about the time limit on complaints
being referred to PHSO. Such an enquiry would be declined as
‘Not properly
made – no MP referral’.
13. If a case is closed as premature and the complainant then wants the complaint
to be referred back to the Ombudsman again at a later date then the law says
that it should be put to the MP in writing and a further referral then made to
us. However, if a complainant contacts us directly and asks us to consider the
complaint again, then in order to be customer focused we can contact the MP’s
office and ask them to confirm that they still support the referral of the
complaint. If that confirmation is given we can then consider the complaint.
14 Section 5(1)(A) 1967 Act
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However, we should only do this if we are certain that it is the same complaint
as was referred previously. If the scope of the complaint has changed or covers
new events raised since the original referral then we should ask the
complainant to refer the complaint to their MP.
Complaint made in writing (health cases)
14. In health cases a complaint must be made in writing to be properly made
15. We
accept complaints made by email as having been made in writing.
15. If a complainant makes contact by other means (for example, by telephone)
and it looks as if local complaints procedures have been completed then we
should refer back the enquiry, giving them one month to make it in writing.
During that time the enquiry is not closed but is given
‘referred back for
complaint in writing’ status. We should also, if appropriate, provide
information about the time limits on complaints being referred to PHSO.
16. Where the complainant fails to submit a complaint in writing within the one-
month period then it should be declined as
‘Withdrawn – complainant failed to
respond’.
17. If a complainant makes contact by other means and it is clear that the relevant
complaints procedure has not been completed then they should be told about
then need to submit the complaint in writing and about the need to attempt
local resolution first. We should also, if appropriate, provide information about
the time limits on complaints being referred to PHSO.
Complaints made by telephone
18. Any enquiry received over the telephone from a complainant that has not
completed any complaints procedure in its entirety must be recorded as ‘
Not
properly made’: either, because there is ‘
No MP referral’; or, because it is
‘
Not properly made – not in writing’.
Equality and diversity considerations
19. Please be aware that we may need to make reasonable adjustments to the way
we provide a service in the light of equality and diversity needs arising on
individual cases. For example, if a complainant is unable to write then we
could consider taking details of the complaint over the telephone and then
sending them a written summary for confirmation that we have accurately
recorded the complaint. Or we could consider putting the complainant in
contact with an advocacy organisation.
Has local resolution been completed?
15 Section 9(2), 1993 Act
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20. If the complaint has been properly made then we need to look at whether the
complainant has put their complaint directly to the organisation complained
about and had a reply. In some cases, a health organisation may ask to refer a
complaint directly [link to paragraph 40] to the Ombudsman.
21. In health cases, the law prevents the Ombudsman from conducting an
investigation unless she is satisfied that the complaints procedure of the health
organisation/service provider has been invoked and exhausted, unless in her
view it was not reasonable for the complaints procedure to have been invoked
or exhausted
16. There is no requirement in the law for parliamentary
complaints to have been looked at by the organisation complained about. It
follows that any decision to decline a case for investigation on the basis that
local complaint resolution has not been completed is a discretionary one.
22. Our policy is that a complainant bringing a complaint to the Ombudsman should
have given the organisation complained about the opportunity to respond
formally to their complaint. It is in the interests of natural justice for an
organisation complained about to be made aware of and have the opportunity
to respond to a complaint and, where possible, it is desirable for a complaint to
be considered and resolved at a local level.
23. Local resolution should have been attempted before we will consider taking any
further action. If a complainant has not started or attempted local resolution
then we will normally decline to investigate the complaint at that stage as
being ‘
premature: local resolution not started’. However, there could be
exceptional circumstances in which we would consider waiving that
requirement so each should be considered on its merits. For example, if the
complainant was suffering particular hardship, had a terminal illness or where
it was clear that the relationship between the complainant and the organisation
had broken down completely.
24. We describe an enquiry as being ‘
Pre local resolution’ if it:
• has not been made to the original organisation
OR
• we consider that the complaints procedure at this organisation has
not been
completed and should be.
25. If we decide to exercise the Ombudsman’s discretion not to require a
complainant to have completed previous procedures, we would record this as
‘
Not reasonable to exhaust the complaints procedure’.
26. If an organisation has several tiers of internal complaint handling and these
have not been completed we still describe the complaint as ‘
premature’. If we
decide to decline a case when local resolution has been started but not
completed then we would use the closure code
‘Premature: Local Resolution
ongoing’).
16 Section 4(4) and (5), 1993 Act
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27. Complainants that come to us prematurely should be told about the time limit.
We should explain that we can put the time limit for making complaints to one
side and that as part of our consideration of this we take into account the
length of time that the organisation took to complete its final response to their
complaint.
28. We should tell the complainant (when we decline a complaint as premature)
that if they remain unhappy following the completion of the organisation’s final
response they should return to us promptly. This is because the time limit for
bringing complaints to the Office still runs from when the complainant became
aware of the matters complained about (the time limit does not restart
automatically when a complaint is declined as premature).
Second tier complaint handlers
29. A number of organisations in jurisdiction have a second tier of complaint
handling which complainants can contact after completing the organisation’s
own complaints procedure. Some examples of these are:
• The Adjudicator’s Office, which looks into complaints about HM Revenue
and Customs, the Valuation Office Agency, and the Insolvency Service.
• The Independent Case Examiner, which looks into complaints about the
Child Support Agency, Debt Management, Pension, Disability and Carers
Service, the Financial Assistance Scheme, Jobcentre Plus and the
Independent Living Fund.
• The Independent Complaints Monitor, which looks into complaints about the
Disclosure and Barring Service.
30. We do not automatically accept all discrete complaint handling functions as
being second tier complaint handlers. Whether or not to accept a complaint
handler as a second tier is a policy decision for the Ombudsman’s office.
31. Where a second tier complaint handler is available then we usually require the
complainant to have taken their complaint there and the process to have been
finished before we would look further into whether to investigate the case. If a
complainant has not completed that process then the case would generally be
declined as
‘pre-second tier’.
32. If the second tier has not been completed, we assess an enquiry as ‘
pre-second
tier’ and signpost the complainant or, with their agreement, directly refer the
papers to the appropriate complaint handler. If a complaint has been fully
considered by the second tier handler we assess the enquiry as ‘
Not pre-second
tier’.
33. We may decide to exercise our discretion to consider a complaint further even
if the available second tier has not been attempted or completed, for example,
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if there is some time critical element to the complaint such as the complainant
suffering from a life-threatening condition or if the complainant is particularly
vulnerable.
34. Exceptionally, where a complaint has not exhausted the procedure (it is
premature), but where we also assess that if the complaint were to return to us
it would be out of our remit, we may decline to investigate for that reason
rather than refer it back into the complaints procedure. This will include cases
where we can quickly and clearly see that the subject matter of the complaint
is, in fact, solely dissatisfaction with a decision for which there is a right of
appeal to a statutory tribunal. In such cases we will, instead, advise the person
that such a right of appeal exists/existed. We should exercise caution in doing
so and should not be seen to suggest that we are advising someone to appeal.
We are advising of the existence of the right of appeal, not indicating that they
should appeal or that if they do they will obtain a resolution. This is a
customer-focused approach aimed at preventing unnecessary referrals back
into the local procedures. However, there are very few enquiries where we
would propose to do this; almost all premature enquiries will be declined as
such.
35. Where there is no established external second tier complaint handler and the
complainant has completed local resolution or the external second tier has
completed its consideration, then we would record an enquiry as ‘
Not
premature’.
Is the complaint still premature?
36. When an organisation has, on the face of it, given a final response to all the
complaints there may be some cases where, when we look at a case in more
detail, there is more work that the organisation could do locally. In such cases
a decision needs to be taken on whether a complaint should be referred back to
the organisation complained about. You should consider the following when
deciding whether to decline the case as premature (on the basis that the
organisation should do more work locally) or whether to consider it for
investigation:
•
Are there compelling reasons why we need further work by the
organisation? It may be that there are a lot of issues which have no
response or a very poor response from the organisation. Or the
outstanding issues are serious and/or are the main focus of the
complaint. Or the explanations needed to answer these questions can
only be provided by the organisation itself and are not available to us to
via clinical advice or the records we hold.
•
Age of the complaint. Generally, the older the complaint and the longer
it has already spent at local level, the less reasonable it will be to send
the case back for further work. Consider whether it is reasonable to ask
the organisation to do more? For example is evidence available and will
witnesses be reliable so long after the event? Consider whether we
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would be hindered in any future consideration of a case because of our
own time limits and whether this would be a good reason for us
considering the case now.
•
Confidence in the organisation providing resolution/good outcome.
Are you confident that the organisation has a good chance at providing
the resolution/outcome the complainant is seeking? Have we already
sent the case back for further work before and why would sending it
back this time be different? Think about the outcome that would resolve
the complaint and what effort has already been made at local level.
What is the quality of actions already taken or previous complaints
handling? What is the relationship between complainant and organisation
like?
•
Complainant’s circumstances. Consider the personal circumstances of
the complainant. It is reasonable to expect them to go back to local
level? Do they see the value in further work by the organisation? Have
they given any reason why it would not be reasonable to close the case
as premature (for example, illness, number of chances already given)?
Although closing the case as premature is the Office’s decision, it is
better to have the complainant’s agreement.
37. If all of the questions above had been considered, any decision to ask the
organisation to carry out further work should be robust.
38. When a case is declined as premature at this stage on the basis that further
work is required, we must make the following points clear in our contact with
both the organisation and the complainant:
• What the organisation is going to do and who will be responsible.
• The agreed timescale for the work.
• That we will be monitoring compliance.
• We should also tell the complainant that they should return to us
promptly if they are unhappy with the outcome of the further work.
39. Where an enquiry is closed as ‘
premature’ ‘
further work required by body’
Visualfiles should be noted with details of a compliance plan in respect of the
action agreed by the organisation. In such cases, the decision letter to the
complainant should explain what action we will take to secure compliance. At
the point of case closure you should also write to the organisation (this can be
by email) to confirm the specific action we are expecting them to take and the
timescale for compliance. We take a risk-based approach to monitoring and
securing compliance which will vary depending on the organisation involved.
Please refer to the specific compliance guidance for more information [link].
Direct referral of health complaints
40. Health organisations (but not GPs, dentists etc.) can refer complaints to the
Ombudsman and request that we investigate. These powers are set out in the
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Health Service Commissioners Act 1993 (Section 10).This provision was meant
to cover exceptional cases ‘where an authority wishes to ensure that justice is
seen to be done, or where it feels that it cannot properly investigate a
complaint itself’.
41. In practice, these cases are few and far between and in most cases we expect
the organisation complained about to have investigated and responded to a
complaint in line with the NHS complaints regulations. However, we do need
to be aware of the potential for referrals by health organisations and of how to
consider them.
42. Points to consider:
• Direct referral complaints must have been made to the organisation in
writing, by a suitable complainant and within one year from knowing about
the issues complained about (though this time limit can be put to one side
by the Ombudsman if she considers it appropriate).
• Organisations wanting to make a direct referral to the Ombudsman must do
so within 12 months of receiving the complaint. We have no discretion to
waive that requirement.
• The Ombudsman has discretion to decide if a direct referral is properly made.
If a direct referral request is received then we should consider whether it
meets the criteria set out above (made in writing, suitable complainant and
in-time). Any request for a direct referral must be treated as an enquiry and
a decision made on whether or not to accept it for investigation. If it is
unclear whether the organisation is making a direct referral (as opposed to,
for example, contacting us for general advice) then we should ask them.
• Organisations should not see direct referrals as a way of passing complaints to
the Ombudsman that they do not want to deal with. The types of cases
which might be accepted as direct referrals include:
o Where relations have seriously broken down between the organisation
and the complainant to the extent that progress on the complaint is
no longer possible.
o Where the subject matter of the complaint is so serious (and possibly
so widespread within the organisation) that it does not feel able to
investigate it properly.
• We would expect the organisation, at the point at which they refer it to us,
to say clearly that they are asking us to investigate the complaint and to
explain why they are unable to consider the complaint, or complete their
consideration.
• We normally see direct referrals as an
alternative to the organisation
investigating the complaint themselves. That is because if the organisation
has already investigated then the complainant can simply be signposted to
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the Ombudsman to make their complaint directly. However, the law does
not say that a direct referral can only be made if the organisation has not
investigated. In exceptional circumstances we might accept a direct referral
even if the Trust has already investigated it.
43. There is no requirement for the organisation to obtain the consent of the
complainant before referring the matter to us. However, it is helpful if
organisations can do this, because one of the first steps in our work on a
complaint would be to find out if the complainant wants the Ombudsman to
consider their complaint. If a direct referral is received then it should be
escalated to line management for advice on how to deal with the case.
Specific discretion
44. The law places specific requirements on complaints that the Ombudsman is
able to consider. These are referred to as ‘specific discretion’ and these
questions must be considered before we take a decision on whether to
investigate a complaint.
Suitability of complainant
45. The law limits the people or organisations who can complain to the
Ombudsman
17. Further information on what the law says about suitability is
available in a Legal Team Briefing note [link].
46.
Is the complainant the aggrieved? The law says that the person affected (the
aggrieved) must make the complaint themselves unless they can’t act for
themselves. If the complainant is the aggrieved then they are suitable. If the
aggrieved is incapable of bringing the complaint themselves, then they can
have someone to bring the complaint on their behalf
18 (in those circumstances
we record the person bringing the complaint as the complainant.)
47. The complainant may choose to have someone represent them for the purposes
of the complaint (for example, a friend or lawyer) but, in those circumstances,
the aggrieved is still recorded as the complainant and the person acting for
them is recorded as the representative.
48. We need to have consent if they want a representative – but this could be taken
verbally over the phone from the complainant. (We will also have to think
about whether the representative is suitable – see below).
49.
Does the complainant have capacity? If we get a complaint made on behalf of
someone said to be unable to complain, we have to check this as we start with
the assumption that someone does have capacity
19. Sometimes the information
17 1967 Act, section 6; 1993 Act, sections 8, 9 and 10
18 1967 Act, section 6(2); 1993 Act, section 9(3)
19 It should be remembered that people may be incapable in some areas (e.g. financial matters) but
capable in others (e.g. ability to understand and bring a complaint).
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the complainant gives us themselves is enough for us to be satisfied that the
aggrieved does not have capacity. But we may need to make some further
enquiries. We can do this by contacting the aggrieved directly or possibly
contacting someone who might be able to tell us about whether they would be
able to complain (for example, GP or social worker.)
50. In cases where a parent or guardian brings the complaint we still need to think
about whether the child may be able to understand enough to bring the
complaint themselves and have the parent/guardian as their representative.
There is no age of consent and each case needs to be considered depending on
the type of case and the age/maturity of the child.
51.
Is the complainant suitable? If we are satisfied that the aggrieved person
cannot complain for themselves, we have to check whether the complainant is
suitable. Considerations include:
• Is there any conflict of interest?
• Is there any evidence to suggest that the aggrieved person wouldn’t want the
complainant to have access to confidential information about them?
• Is there any suggestion that the complainant is not acting in the aggrieved’s
best interest?
52. The same considerations apply when you are deciding whether someone is a
suitable representative.
Time limit
53.
How old is the complaint? We must identify whether the complaint is in or out
of time.The law limits the time which complainants have to raise a complaint
20.
For health complaints the aggrieved must refer the complaint to us within one
year from the day the aggrieved first became aware that they had a reason to
complain. For parliamentary complaints the aggrieved must refer the matter to
an MP within 12 months from the day the aggrieved first became aware that
they had a reason to complain. More information is available in a Legal Team
briefing note [link].
54.
Why was there a delay? If the complaint was made outside of the time limit
then we can still use our discretion to look at it. If a case is out of time then it
is our policy to consider the following points before deciding whether to put
the time limit to one side:
• Complainant’s reasons for delay (could include ill health of the complainant
or close family or not being aware of the Ombudsman, especially if not told
by the organisation complained about).
• Time taken for organisation to respond to complaint.
• Scale of injustice - if the case raises clinical issues you may need clinical
advice to help you reach a decision.
20 Section 6(3), 1967 Act; section 9(4) 1993 Act
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• Wider public interest.
• Any other relevant factor.
55.
Previously premature cases. Where a complaint is referred back to the
Ombudsman having been closed before as premature, it needs a fresh
consideration of the time limit. We will take into account whether the
complainant was informed about our time limits – if we didn’t warn them (as
we should) it is more likely that we will put the time limit to one side.
56.
Part in time and part out of time? In some cases different elements may be in
or out of time. For example, where new issues form part of a complaint
following an earlier premature decision (such as concerns about the intervening
complaint handling by the organisation complained about) we may need to
make separate judgments about the application of the time bar to those new
issues and to the original substance of the complaint. Alternatively, the
substance of a complaint could be out of time, but distinct concerns about
complaint handling or about a second tier handler could be in time. It is
important to look at each of these elements carefully and to take a view on
whether they are separate complaints for the purposes of the time limit.
57.
Too old? Even if a complaint is in time, we still may consider it impractical to
investigate very distant events, especially when there is a lack of contemporary
evidence. A decision not to investigate one of those cases would be dealt with
under general discretion as ‘cannot reasonably achieve more’.
Alternative legal remedy
58. The law says that the Ombudsman cannot investigate if there is or was a legal
remedy (which includes established methods of challenging for example, right
of appeal to a benefit tribunal or court) that the aggrieved should pursue or
should have pursued, unless it is (or was) not reasonable for them to do so
21.
More information is available in the Legal Team briefing notes on alternative
legal remedy [link] and time limits for legal claims [link].
59. Our policy is that if the aggrieved has resorted to a court or tribunal that did or
could have provided the full remedy sought the complaint is out of our remit. If
the aggrieved has not had a full legal remedy (which includes not taking legal
action) we must consider two questions:
• Is or was there an alternative legal remedy?
• Is it/was it reasonable for the aggrieved to use it? Reasons why it may be
unreasonable to expect them to use it include:
o Cost (would cost more to take legal action than they would get in
compensation).
o Time.
o Whether the legal route would give them the outcome/remedy they
want (if it can’t give them the whole outcome we would usually say it’s
not reasonable to expect them to take some parts to court and for us to
21 1967 Act, section 5(2); 1993 Act, section 4
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look at other parts if we can potentially provide all the remedy
ourselves). In addition, if we can clearly see a potential claim in
negligence then we should consider bringing that to the attention of the
complainant, regardless of what they have said they want to achieve.
What more can we reasonably achieve?
60. We need to take a view on what more we can reasonably achieve by
investigating. This question is one of proportionality: would an investigation be
a good and appropriate use of the resources available to PHSO? Some questions
to consider here include:
• Are there quicker, more proportionate ways to resolve the complaint? For
example, is the case suitable for resolution without needing to investigate?
• Is the maladministration/service failure and injustice so severe that an
investigation is warranted? For example, if there were indications of service
failure and the claimed injustice was an avoidable death.
• Is the outcome sought reasonable in relation to the claimed injustice? For
example, an investigation might not be warranted if a complainant is
interested only in substantial compensation and we consider that an upheld
complaint would be unlikely to result in such a remedy.
• If we were to uphold the complaint would the outcome be achievable? For
example, an investigation might not be justified if a complainant is
interested only in an outcome we know is not obtainable, such as the
dismissal of a member of staff who they have complained about.
• Is there a wider public interest that might justify an investigation? This can
involve a number of considerations. For example:
Where the subject matter of the complaints has generated
significant interest externally such as in Parliament or the
media.
An investigation may be justified where we may not be able to
put the complainant back in the position that they would have
been but may be able to obtain a systemic remedy to prevent
a recurrence.
Where we see a number of cases in which a body appears to
have made similar (if sometimes small) errors then an
investigation may be justified to address a potential systemic
problem, even if we are unsure of the outcome for the
individual complainant.
• Are we likely to be able to make a firm finding? Relevant factors to consider
here include the length of time elapsed since the matters complained about
and availability of contemporary evidence.
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• Would there be value in an investigation that did not uphold the complaint?
For example, would such an outcome be useful in terms of assuring the
complainant or the body that they were treated, or had acted reasonably?
61. Our ability to consider this question will be helped by an in-depth discussion
with the complainant in order to explain what we can and can't achieve and to
explore what, if any, outcomes would be acceptable to them within that
framework. This may involve managing expectations where a complainant is
seeking an outcome we know we would be unable (or very unlikely) to achieve.
But we may also need to explain the range of possible outcomes as some
complainants may not be aware of the types of remedies that could be
achieved for them.
Other reasons to decline
62. In a small number of cases we may decide to decline the complaint for other
reasons rather than investigating.
Other dispute resolution forum appropriate
63. Some complaints could be considered by both us and another complaint
handler. We usually only expect one organisation to investigate (following
agreement with the other) and sometimes the other organisation may be more
appropriate. Examples include:
• Complaints about access to medical records where both the Health Service
Ombudsman and the Information Commissioner have jurisdiction.
• Victims’ Code complaints which could be considered by the Parliamentary
Ombudsman and the Independent Police Complaints Commission.
• Mental Health Act detention cases where both the Health Service Ombudsman
and the Care Quality Commission may have jurisdiction.
• Professional regulators such as the Nursing and Midwifery Council, General
Medical Council and General Dental Council.
Other discretionary reason to decline
64. Even if all the answers to the questions we have considered indicate that we
could investigate, we can still use the Ombudsman’s discretion to decline to do
so for a number of reasons. For example:
• A complaint is under consideration by another organisation such as the
Coroner’s Court. We may want to wait until the Coroner has finished
their consideration.
• Part of the complaint is ready for us to investigate but it’s too closely
linked to another complaint which is still being considered by the
relevant organisation. We can decline because the all the issues need to
be considered at the same time.
• A complainant does not co-operate with our consideration of their
complaint (for example, refusing to accept the proposed scope of the
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investigation or attempting to place restrictions on the proposed
investigation).
Linked to lead cases
65. In some types of complaint, especially where a large number of people have
been affected by the same error and seek a similar remedy, the Ombudsman
might choose to investigate a small number of ‘lead’ complaints that exemplify
the issues complained about. Those enquiries not being treated as ‘lead’ cases
will be declined as ‘linked to lead’ but with the details of the
complaint retained to allow us to take action, as necessary, to contact the
complainant once the lead enquiry or investigation is completed. If an enquiry
is subsequently made to us about a matter already covered by a ‘lead’
investigation, then we will also close the enquiry as being linked to the lead
investigation and retain the details of the complaint with the other linked
cases.
Resolving cases in Customer Services
66. Our focus should be on resolving cases appropriately at the earliest possible
stage and avoiding unnecessary investigations. Resolution at this stage of the
process means getting the organisation complained about to take action that
will provide an appropriate outcome for the complainant.
67. These cases may also include some that are ‘not properly made’ or
‘premature’, but where it is clear that the complainant needs assistance other
than signposting through the complaints procedure, we should always consider
whether we can add value to the outcome for the complainant. This is
particularly appropriate where the complainant may be vulnerable, the issues
complained about could be resolved quickly and easily by the organisation, or
where we need to contact the organisation to establish the stage the complaint
has reached. In these cases we are acting as a conduit between the
organisation and complainant to try and achieve a speedy and appropriate
response to the complaint. These cases will involve the organisation taking
some action to move on the particular issue or complaint. For example, getting
an enquiry replied to, progressing a delayed payment or arranging an
appointment.
68. Other resolution cases may provide what we consider to be an appropriate
remedy to the whole complaint. These cases are most likely to present a clear,
simple and achievable remedy. Examples of such remedies include:
compensation for clear or admitted errors; apologies; and getting a delayed
claim, appeal or application progressed. In some circumstances a detailed
explanation may also be an appropriate remedy.
69. The correct Visualfiles Enquiry action code to use in these cases is ‘
Value
Added by PHSO’.
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70. Please note that this guidance does not cover the process to conclude
investigations in Customer Services that is being piloted from Quarter 4 of
2013-14.
Requesting papers
71. A decision should be taken on a case-by-case basis as to when it is appropriate
or necessary to request papers from the organisation in jurisdiction. We do not
need specific consent from a complainant to obtain such information as we can
use the information gathering powers contained within our legislation.
72. However, as a point of good practice we should advise complainants that we
may need to obtain (and share) information about their complaint.
Complainants who complete a complaint form are also asked to provide consent
for us to obtain relevant information/papers (including, for health complaints,
medical records).
Reaching a decision
73. After all of the relevant questions have been considered then a decision should
be taken. If an enquiry is:
• In remit;
• Properly made;
• Not premature;
• Meets the specific discretion requirements;
• Not suitable for resolution in Customer Services;
• Not covered by any of the other reasons to decline;
• Appropriate for investigation (proportionate); and
then a proposal to investigate [link to next section] should be issued.
74. If the outcome of our consideration is that the enquiry is to be declined for
investigation then we should issue a decision to explain why.
75. Enquiry cases can be referred to the casework discussion meeting chaired by
the Investigations and Resolution Directorate. The meeting can consider:
• enquiries where the judgment (on whether to investigate the case) is finely
balanced or where the case is high risk; or
• those where difficult or contentious issues arise during the course of an
enquiry or where the future direction of the enquiry is uncertain.
Cases should be escalated to the Head of Customer Services who will decide
whether to refer the case to the discussion meeting.
Approving the decision
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link to page 17 link to page 17
76. The decision to decline an enquiry for investigation at the Customer Services
stage should be approved in line with the Delegation Scheme. Unless otherwise
stated it is not a requirement for the member of staff approving the decision to
also physically sign out the decision.
77. A member of staff approving a decision should only do so having seen the draft
decision letter(s) supported by any necessary separate analysis.
Communicating the decision
78. In parliamentary cases the decision letter should be addressed to the
complainant with a copy sent to the referring MP
22 under a brief covering
letter.
79. In health cases the decision letter should be addressed directly to the
complainant (and a copy sent under a brief covering letter to any MP
involved)
23.
80. If there is a separate aggrieved party who is not the complainant then we
should consider on a case-by-case basis as to whether a separate copy of the
decision letter should also be sent to them.
81. Professional representatives or advocates can an also be sent copies of decision
letters providing we have appropriate authorisation from the
complainant/aggrieved for them to act on their behalf. (In cases where the
representative or advocate is the complainant then the letter will have been
addressed directly to them in any case.)
Customer survey
82. Complainants will have received information about the customer survey (and
the possibility of opting out) as part of the initial acknowledgment of their
complaint. However, depending on the length of time a case has been in the
office, it may be necessary to include a reminder about the customer survey
with our decision. A decision about whether to include this reminder should be
taken on a case by case basis (for example, a case closed within one month of
receipt is unlikely to need a reminder). The wording to use is:
• We use an external research company to find out what our customers think.
If you would prefer us not to pass your contact details on to them please
call 0300 061 4222 or email us at xxxxxxxxxxxxxx@xxxxxxxxx.xxx.xx
83. If a complainant does ask not to be contacted for the customer survey then this
should be noted on Visualfiles using the ‘not to be contacted for research’
button on the ‘case closure’ screen, with reasons noted in the free text field.
22 Section 10(1), 1967 Act.
23 Section 14(2), 1993 Act.
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Complaints about us
84. Any decision issued by Customer Services should remind the complainant about
the review process if they are unhappy with our decision or service. The
following wording should be used (this can be added as a footnote, annex or
under the signature block as necessary):
•
Happy with our service?
We aim to give the best possible service to our customers. If you are
dissatisfied with the standard of service you receive from us, or if you have
concerns about the decision we reach on your case, you may pursue your
concerns through our complaints procedure. If you would like further
information about the procedure please contact us on 0300 061 4076, or by
email at
xxxxxxxxxxxxxxxxxxx@xxxxxxxxx.xxx.xx. Alternatively, details
about our complaints procedure are available from our website at
www.ombudsman.org.uk.
Decisions signed by the Ombudsman
85. Decisions to decline complaints on cases referred by the Speaker of the House
of Commons, the Chairman and members of the Public Administration Select
Committee, the Chairman of the Health Select Committee, the Chairman of the
Public Accounts Committee and the three main party leaders
must be signed by
the Ombudsman or Chief Operating Officer.
86. The file, with appropriate final drafts for the Ombudsman’s signature, should
be referred via line management to the Ombudsman’s Casework Team.
87. In parliamentary cases, where a covering letter is required for the MP’s copy of
the final decision letter, it should be signed by the Ombudsman as well. Please
include an appropriate draft covering letter when submitting the case.
88. Any queries regarding cases to be signed by the Ombudsman should be directed
to the Ombudsman’s Casework Team.
Joint working cases
89. If a complaint contains elements that may require us to consider joint working
with, for example, the Local Government Ombudsman then it will normally be
passed directly from Customer Services to an investigation team to carry out
the case assessment.
Protective marking scheme
90. Our protective marking scheme means that all case-related information (except
for published and anonymised material) is treated as ‘restricted’. This covers
both physical and electronic case documents and sets specific requirements for
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their handling, storage and communication. This includes how we send
information in hard copy and electronically.
91. Casework staff must refer to the protective marking scheme [link] information
on Ombudsnet for guidance.
Managing case files
92. Casework records (whether electronic or hard copy) must be managed in line
with the Case File Management guide [link].
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