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1.8.1 Complaints and Representations

SCOPE OF THIS CHAPTER

This procedure covers complaint and, representations received in respect of services to children. 

This procedure does not apply to complaints of Significant Harm, which must be dealt with under the Local Safeguarding Children Board Inter Agency Procedures.

The DfE have also produced Young Persons Guide to Children and Families Act 2014.

AMENDMENT

In June 2015, a link to the DfE Young Persons Guide to Children and Families Act 2014 was added (above) to this manual.


Contents

  1. Introduction to the Complaint Procedure
  2. What is a Complaint or Representation?
  3. What can be Complained about?
  4. What is Exempt from the Complaints Procedure?
  5. Who May Complain?
  6. Receiving a Complaint
  7. Time limit for making a Complaint
  8. A Complaint may be made in any of the following ways
  9. Stage 1 Local Resolution
  10. Stage 2 Investigation
  11. Stage 2 Reports
  12. Stage 2 Adjudication
  13. Stage 3 Review Panel
  14. Stage 3 General Principles
  15. Stage 3 Redress
  16. Make up of the Stage 3 Review Panel
  17. Administration of the Stage 3 Panel
  18. Withdrawing a Complaint
  19. Publicity
  20. Information and Training for staff
  21. Resolving the issue
  22. Recording of Complaints
  23. Confidential Complaints
  24. Annual Report
  25. Redress
  26. Freezing a Decision
  27. Working with other Procedures
  28. The Council's Corporate Complaints Procedure
  29. Grievance and Disciplinary Procedures
  30. Complaints involving Regulated services
  31. Court Orders
  32. Guidance on Unacceptable Behaviour


1. Introduction to the Complaint Procedure

From 1 September 2006, the Department for Education and Skills produced new Regulations and Guidance for dealing with social services complaints and representations. The overall principle is that children and young people who make representations have their concerns resolved swiftly and if possible by the staff they have been dealing with locally. The complaints procedure should be a positive aid to informing and influencing service improvements, not a negative process to apportion blame. The intention of the guidance is to describe a statutory procedure for a child or young person who wants to make representations, which include complaints.

The regulations require Local Authorities to designate an officer, known as the Complaints Manager, to undertake certain functions. These include taking an active role in facilitating resolution of complaints, and fostering good working relationships with key bodies and partner agencies.


2. What is a Complaint or Representation?

A complaint may generally be defined as an expression of dissatisfaction or disquiet in relation to an individual child or young person, which requires a response. A representation may be a positive remark or idea that requires a response.


3. What can be Complained about?

All functions of the social services department, provided under Part 3 of the Children Act 1989 may be complained about. Some new areas have been added, which may also now be the subject of a complaint. A Complaint may relate to any of the following, but this list is not exhaustive:

  • An unwelcome or disputed decision
  • Concern about the quality or appropriateness of a service
  • Delay in decision making or provision of services
  • Delivery or non delivery of service including the complaint procedure
  • Quantity, frequency, change or cost of a service
  • Attitude or behaviour of staff
  • Application of eligibility and assessment criteria
  • The impact on an individual of the application of a Local Authority policy
  • Assessment, Care Management and Review
  • The quality or accuracy of a social work report that has gone to Court
  • Some adoption-related functions
  • Certain functions under the Special Guardianship Regulations

The areas that have been added are:

If it is possible to resolve the matter immediately, there is no need to engage the complaint procedure.


4. What is Exempt from the Complaints Procedure?

The complaints procedure does not apply when:

  • The person wishing to complain does not meet the requirements "who may complain" and is not working on behalf of such an individual
  • The complaint is not in regard to the actions or decisions of the Local Authority complained to, or of any body acting on it's behalf
  • The same complaint has already been dealt with at all Stages of the procedure

The Local Authority has discretion in deciding whether to consider complaints where to do so would prejudice the following concurrent investigations:

  • Court proceedings
  • Disciplinary proceedings
  • Tribunals
  • Criminal proceedings

Once the concurrent investigation has been concluded, the Complainant may resubmit their complaint to the Local Authority as long as it is within one year the conclusion of the concurrent investigation.


5. Who May Complain?

This is not an exhaustive list. In practice, in Portsmouth City Council, we will apply the eligibility for the Social Care complaints procedure broadly and refer those who are not eligible to the Corporate Complaints Procedure (happens rarely). We also retain the discretion to refer a complainant to another procedure if appropriate.

  • Any child who is being Looked After by the Local Authority or someone who has Parental Responsibility for them
  • Any child who is in need
  • Any Local Authority foster carer
  • Children leaving care
  • Special Guardians
  • Persons wishing to adopt a child
  • Such other person as the Local Authority consider has sufficient interest in the child or young person's welfare to warrant his representations being considered by them

Where a complaint is made on behalf of a child, the Local Authority should normally confirm with the child that they are happy for this to happen and that the complaint reflects their views.

The Local Authority has discretion in deciding whether or not the representative is suitable to act in this capacity or has sufficient interest in the child's welfare. The Complaints Manager should discuss with relevant operational managers, and if a decision is made that the person does not have sufficient interest, they should notify the representative in writing explaining that no further action will be taken.


6. Receiving a Complaint

Complaints handling must be child and young person friendly, and appropriate to the age and understanding of the child. Complaints can be made verbally or in writing, including electronically. The child or young person should be offered an advocate, and helped to get one.


7. Time limit for making a Complaint

  • Local Authorities need not consider complaints made more than one year after the grounds arose that gave rise to the complaint. In these cases, the Complaints Officer will write to the complainant to advice that their complaint cannot be considered and the reason why.
  • The complainant is able to contact the Local Government Ombudsman if they disagree with this decision.
  • There should be a presumption to accept a complaint unless there is good reason not to


8. A Complaint may be made in any of the following ways

  • By using the leaflet "How to make a comment, compliment or complaint"
  • Letter
  • Telephone (complaints office 02392 841172)
  • Email (complaints@portsmouthcc.gov.uk)
  • In person
  • Via a solicitor or advocate

Any complaint should be forwarded to the Local Authority Complaints Officers who will then log the complaint formally.

As soon as it becomes apparent that the complaint is to be logged formally and cannot be resolved immediately, the Local Authority Complaint Officers will send an acknowledgement letter to the complainant or representative within two working days of first receiving the complaint. A copy of the "How to make a comment, compliment or complain" leaflet will also accompany the letter which details the complaint procedure at each Stage and contact details for the Complaint Officers.


9. Stage 1 Local Resolution

A complaint is made on the date that the Local Authority first receives it. If the Complaints Officer or Senior Manager believes that it would not be appropriate to consider the complaint at Stage 1 then they should discuss this together with complainant. Where both parties are agreed, then the complaint can move directly to Stage 2.

Most complaints should ideally be concluded within 10 working days. This period can be extended when:

  • The Local Authority cannot provide a complete response, in which case it can implement a further 10-day extension
  • The complainant has requested an advocate, in which case the Local Authority may also suspend Stage 1 until an advocate has been appointed, providing the suspension doesn't last more than 10 days

The total maximum time for a Stage 1 response is 20 working days. If a response is not provided within this time, the Complaints Officer should advise the complaint that they have the right to move on to the next Stage.

It may, however, be that the complainant is happy for the next Stage to be put off for the time being and this period can be extended with the complainant's agreement or request.

Where the matter is not resolved locally, or the complainant is dissatisfied with the Local Authority's response, we then invite the complainant to request Stage 2 within 20 working days.


10. Stage 2 Investigation

Once the complainant and Complaint Officer agree to take the complaint to Stage 2, the Complaint Officer will normally commission an Investigating Officer (IO) and Independent Person (IP) to investigate the complaints and produce a report. Consideration of the complaint at Stage 2 should be fair, thorough and transparent, with clear and logical outcomes.

The first job for the IO and IP is to meet with the complainant and agree the detail of the complaint, the outstanding issues and the complainant's desired outcome. A statement of complaint should then be produced and signed by all parties.

The IO will investigate the complaint then prepare a written report for adjudication by a Senior Manager or the Head of Service. The IP will be involved in all aspects of the investigation and can raise issues as necessary.

The IP will produce their own brief report. The IO and IP will have access to all relevant records and staff. Any records should be released within the bounds of normal confidentiality and with regard to Freedom of Information and also Data Protection.

A copy of the complaint should be sent to any person that is involved with the process, unless where doing so would prejudice consideration of the complaint.

The Investigation should be completed and the response sent to the complainant within 25 working days from the date the statement of complaint was agreed. However where it is not possible to complete a Stage 2 within 25 working days, Stage 2 may be extended to a maximum of 65 working days.

The Complaint Officer should agree all extensions, and the Local Authority must inform the complainant as soon as possible in writing. They must include the reason for the delay and the date by which the complainant can expect a response.


11. Stage 2 Reports

On completion of the consideration of the complaint, the IO will write a report on their investigations. The report should include:

  • all relevant background information so that an accurate picture of the facts is clear
  • details of findings, conclusions and outcomes against each point of complaint i.e. whether upheld, not upheld or partially upheld
  • evidence for any findings
  • details of recommended actions to remedy any injustice to complainant • plain English, avoiding jargon
  • distinguishing between fact, feelings and opinion The IP should also provide a report on the Investigation. Their report should include the following:
  • Whether that they feel the investigation has been conducted entirely in an impartial, comprehensive and effective manner
  • Whether all those involved have been able to express their views fully and fairly
  • Whether the IO's report provides an accurate and complete picture of the Investigation
  • The IP's view on the recommendations plus any of their own recommendations if necessary


12. Stage 2 Adjudication

The purpose of adjudication is for a Senior Manager or the Head of Service to consider the reports and to then respond to them. The Adjudicating Officer may wish to meet the child or young person as part of the process or afterwards to explain the details.

The response will identify the following:

  • The Local Authority's decision on each point of complaint
  • Any action that will be taken

The Local Authority will then write to the complainant with their response including:

  • Their response letter with the adjudication
  • Notification that if the complainant is still dissatisfied and wishes to request Stage 3, that we invite them to do this within 20 working days from the dated response letter
  • A copy of the Investigation report
  • A copy of the Independent Person' s report


13. Stage 3 Review Panel

Review Panels are designed to consider whether the Local Authority dealt with the complaint adequately at the Stage 2 investigation. Since it is not possible to review a complaint that has not yet been fully considered at Stage 2, it is essential that the Council does not unnecessarily delay the conclusion of Stage 2.

Review panels are designed to:

  • Listen to all parties
  • Consider the adequacy of the Stage 2 investigation
  • Obtain any further information and advice that may help resolve the complaint to the satisfaction of all parties
  • Focus on achieving resolution for the complainant
  • Reach findings on each complaint being reviewed
  • Make recommendations that provide practical remedies and creative solutions to complex situations
  • Support local solutions where the opportunity exists
  • To identify any consequent injustice to the complainant and to recommend any appropriate redress
  • Recommend any service improvements for action by the Council

The Review Panel should not reinvestigate the complaints or consider any substantively new complaints. No party should feel the need to be represented by lawyers at the Review Panel. The purpose of the Panel is to consider the complaint and, wherever possible, to work towards a resolution. It is not a quasi- judicial process and the presence of lawyers can work against the spirit of openness and problem solving. The complainant does have the right to bring a representative to speak on their behalf.

The standard of proof applied by panels should be the civil standard of "balance of probabilities" and not the criminal standard of "beyond all reasonable doubt" This standard should be based on evidence and fact.


14. Stage 3 General Principles

  • Panels should be conducted in the presence of all relevant parties with equity of access and representation for the complainant and the Local Authority
  • Panels should uphold a commitment to objectivity, impartiality and fairness and ensure the rights of all parties are respected at all times
  • The Panel should be alert to the importance of providing a demonstrably fair and accessible process for all participants
  • Many complainants, particularly children and young people may find this Stage to be a stressful experience. It is important that the Panel is customer focused in its approach. This may mean limiting the total number of Local Authority staff attending to a workable minimum to avoid the possibility of overwhelming the complainant
  • The Chair has discretion to suspend or defer proceedings in exceptional circumstances


15. Stage 3 Redress

The Review Panel must set out its recommendations to the Local Authority on any strategies that can assist in resolving the complaint. These may include financial compensation, or other actions within a specified framework.


16. Make up of the Stage 3 Review Panel

  • The Review Panel must consist of three independent people
  • Independent means, in this instance, not being an employee of Portsmouth City Council, or spouse or partner of an employee, for at least three years prior to the panel meeting
  • The Chair should be appointed first, so that they can contribute to the organisation of the panel, if they wish to do so. This should happen within 10 days of the request for Stage 3


17. Administration of the Stage 3 Panel

Timescales for the Stage 3 Review Panel:

  • The complainant should request the Review Panel within 20 working days after receipt of the Stage 2 report
  • The Complaints Officer will acknowledge the request within two working days of receipt
  • The Complaints Officer will (where possible) then appoint a Chair within 10 working days of the request for the Review Panel
  • The Complaints Officer and the Chair will agree the other panelists and the date for the Panel hearing within 30 days of the request for a Review Panel
  • The Complaint Officer distributes the panel papers within 10 working days of the Panel hearing date 10/07/CF 10
  • The Review Panel produces a written report including any recommendations within five working days after the Panel has met
  • Portsmouth City Council will respond to the report and Panel hearing within 15 working days from receipt of the Panel's report.

The Panel papers should include:

  • Information on Stage 1 of the Complaint
  • The Stage 2 investigation report
  • The response from Portsmouth City Council at Stage 2
  • Any policy or guidance relevant to the complaint
  • Information on local practice such as times, conduct, roles and responsibilities

Review Panel Meeting Day

  • Pre-meeting. This is an opportunity for the panelists and their administrative support to meet in closed session to discuss the order of business and any other relevant issues, excluding deliberations on the complaint.
  • Presentations. The Chair should advise the complainant of the respective roles and responsibilities of those present, and address any questions or concerns. The Chair should ensure that the Panel's focus is on the agreed complaint and the complainant's desired outcomes. The purpose of the presentations is to understand each party's opinion of the complaint rather than to provide an opportunity to cross-examine attendees. The Chair should indicate how long the presentations should last. Subsequently, the panelists should have the opportunity to ask questions of all present.
  • Deliberations. The Panel should then go into closed session to deliberate on their findings and conclusions. They should produce a report containing a brief summary of the representations and their recommendations for resolution, within five working days of the Panel meeting.
  • After the Panel. Portsmouth City Council will send a response to the to the complainant on the Panel's recommendations within 15 working days of receiving the Panel's report. The complainant should also be made aware of their right to refer the complaint (if still dissatisfied) to the Local Government Ombudsman.


18. Withdrawing a Complaint

  • The complainant may withdraw the complaint at any time
  • Portsmouth City Council must then write to confirm the withdrawal
  • The Local Authority can then decide if they wish to still investigate the issues that gave rise to the complaint by an internal investigation


19. Publicity

Information will be made available free of charge to all members of the community. The right to complain should be promoted via staff talking to service users and also using leaflets and posters. Written information should explain the procedure in straightforward terms.

Publicity should be tailored to meet the needs of children and young people with learning disabilities, sensory impairment, limited mobility and those who do not have English as their first language.

Councils should be alert to the benefits of websites, text messages on mobile phones, and local media as well as traditional forms of advertising and publicity.


20. Information and Training for staff

Staff may need increased support and supervision from line managers to help them co-operate with the procedure and work positively with the complainant. Tailored training should be available to staff at all levels of the Authority.


21. Resolving the issue

Attempts at resolving a problem should not end once a complaint has been made. There should be continued efforts to resolve the dissatisfaction of children and young people.

There are a number of methods of resolution that do not require a full investigation, including an apology, conciliation or mediation, a reassessment, practical action specific to the complaint, a review of practice and an assurance that the Local Authority will monitor the effectiveness of its remedy.


22. Recording of Complaints

The Complaints Office will record:

  • Each complaint received
  • The outcome
  • The compliance of time limits

The overall purpose of recording is that concerns are being dealt with and that a fair and thorough investigation has taken place. This information will be used to report back to Senior Management who will use the feedback to improve service delivery in the future.

All functions of the complaints procedure must adhere to the requirements of the Data Protection Act 1998 and the Freedom of Information Act 2000.


23. Confidential Complaints

A frequent worry of children is that details of the complaint might be given to other people who do not need to know about it. Children see privacy and confidentiality as vital and must be able to make confidential complaints, sometimes to avoid comebacks on themselves.


24. Annual Report

Local Authorities are required to publish an Annual Report each financial year. The Report should not contain personal information that is identifiable about any individual complainant. The Report should be available to staff and the general public as well as the Local Authority committee and should provide the following information:

  • The number of complaints and representations received at each Stage
  • Any complaints that were considered by the Local Government Ombudsman
  • Which customer groups made the complaints
  • The types of complaints made
  • The outcome of complaints
  • Details of any advocacy services provided
  • Compliance with time scales
  • Learning and service improvement
  • A summary of statistical data about the age, gender, disability, sexual orientation and ethnicity of complainants
  • A review of the effectiveness of the complaints procedure


25. Redress

Under section 92 of the Local Government Ombudsman Act 2000, Local Authorities are empowered to remedy injustice arising from maladministration. Each case would be considered on its own merit and any application should:

  • Be appropriate to the injustice
  • Put the complainant in the position they would have been in except for the fault
  • Consider financial compensation where the above is not possible
  • Take into account the complainants views and desired outcomes
  • Take into consideration the effect of the complainants own actions, such as delay on their part

When considering financial redress, the Council will consider the following:

  • Whether it is appropriate to offset compensation where the complainant owes money to the Local Authority
  • Where the complainant has incurred expenses or financial loss, the Authority should consider if it is appropriate to pay for loss of interest
  • It may be appropriate to calculate a financial remedy as a formula which takes into account all known factors


26. Freezing a Decision

If the complaint is about a proposed change to a care plan, placement or service it may be possible to "freeze" or "defer" until the complaint is considered. However, care should be taken where this could have an effect on the physical or mental wellbeing of an individual in the meantime.

The decision to defer should normally be made between the Complaints Officer and the Manager responsible for the service. These decisions should be made on a case by case basis and by detailed discussion and risk assessment.


27. Working with other Procedures

In considering a complaint which is subject to concurrent investigation, the Local Authority must take care not to prejudice the other investigation. Where the case is involved in court proceedings, the court proceedings must be concluded before the investigation can take place by us. The Local Authority has the discretion to decide not to commence or to suspend any investigation should we feel it would compromise the other investigation. The Local Authority must advise the complainant of this fact and the reason behind it.


28. The Council's Corporate Complaints Procedure

The Complaints Officer will ensure that where a complaint relates to Social Care and another department of the Council, liaison with other staff takes place as necessary to provide wherever possible a single clear reply that covers all aspects.


29. Grievance and Disciplinary Procedures

The complaint procedure should be kept separate from grievance or disciplinary procedures. Where there is an element of grievance or discipline, the Council should keep the child informed of progress, whilst having regard to normal staff confidentiality.

Staff should be reassured that they should not be held personally liable for carrying out a resource decision or allocation of service.


30. Complaints involving Regulated services

Services that are regulated are required to have their own separate complaints procedure under the Care Standards Act 2000. If the Complaints Officer receives a complaint, they should decide whether it is most appropriately dealt with by the complaints procedure within the relevant regulated service or whether it is a matter more directly related to the exercise of the Local authority's Children Act 1989 functions.

Where the Local Authority is responsible for the original assessment of need that led to a placement and associated funding, then the complainant will in most cases have recourse to the Social Care procedure.

Where a complaint relates to services provided under the Children's Homes Regulations 2001, the Council should refer the relevant parts to the registered provider within five working days. Any issues of safeguarding and potential vulnerability of the child should be confirmed with the child before releasing the complaint to the relevant provider.

The Complaints Officer should ensure good communication with all other parties, to ensure a seamless response.


31. Court Orders

The complaint procedure is not an appeals procedure for court orders. People wishing to appeal against court orders should approach the court. However, complaints about the conduct of a social worker in court proceedings may be appropriately considered under this procedure. The child should be informed that the complaints procedure cannot overturn a court decision.


32. Guidance on Unacceptable Behaviour

The Local Authority will not expect staff to tolerate behaviour by complainants that is unacceptable. The Council will take action to protect staff from behaviour that is abusive, offensive or threatening.

End