If you’re an adult needing help with everyday tasks, your local authority (or in Northern Ireland your Health and Social Care Trust ) has a legal duty to carry out a care needs assessment to assess your individual care and support needs, to decide the best way to help you.
The Care Act 2014 places your wellbeing at the centre of your support needs. For example, you might want to stay in your home, and this must be taken into consideration. The assessment and care plan will take into account what is important for you, balancing wellbeing and risk. The assessment looks at the impact on other areas of your life and how this affects your general wellbeing. For example, if in the past your care needs have prevented you from joining in activities outside the home – but if this is something you want to do then this must be part of the assessment and care plan process.
The Care Act provides for the assessment process and the minimum threshold of need that the Local Authority should support. It states that individuals should take the lead in explaining what care and support is needed to make life easier. Consequently it is essential that you can show a detailed account of all the tasks you find difficult, especially on ‘bad’ days, so you can show evidence and discuss them during the assessment. The better your account the more likely the assessment will be tailored to your needs. In lots of cases the assessment will go smoothly and professionally and the outcome is fair but sadly this is not always the case. Lots of different things can go wrong as you will see in the sections below relating to complaints.
Consequently we recommend that, whenever you begin to feel that things might not go well or if things about the assessment start to go wrong, you dedicate a label to your interactions with the Local Authority. Our app is ideal not only for helping you prove your case for funding/support but if you also make records relating to your experience of how the Local Authority carry out the assessment this will go a long way to assisting you if you end up having to complain.
Keep a record (either yourself if you can or with the help of a trusted relative, friend or helper) of how your daily self care routines and activities go for as long as you can before the assessment starts. You will then have a current clear record of what you can’t manage.
Before you start recording decide if you want to record everything about your difficulties on one label or divide it into the separate tasks you find difficult. Don’t forget to add the label relating to how the Local Authority behaves. Then get started. Say what goes badly with your daily activities each day, being specific about the actual task, the difficulties you encountered and the time you took. If someone already helps you with any of these activities, this still counts as a need you have, so you should make sure that you record on each occasion whether you carry out these tasks either with or without help. It would be a good idea if whoever gives you help also contributed to your records. Just record it in the text box but make sure the comment is attributed to the helper. Rate the level of difficulty you experience each time. Record the same tasks over time and each and every time you do it. It may seem repetitive but don’t worry there really is a point to it. This will show if the same activity is easier on one occasion than another or if something has happened to make things harder for you. If you’re being assessed and the assessor sees you on a good day it’s bound to influence their thinking unless you have evidence about the disparities over time and what might have caused them. Keeping a good record on the app will help you achieve this. You will then have a full record of your difficulties on a timeline showing their frequency and severity and the extent of any help you already have. That will give you very clear evidence of the extent of your difficulties to show the person assessing you. It will give the assessor a much better picture of how you fare each day rather than having to explain in a question and answer conversation. You will be armed with evidence from the start of the assessment and needn’t worry about not being able to remember enough or explain your situation well enough.
Alongside this though, keep as thorough a record as you can of your interactions with the Local Authority and anyone else you come into contact with acting on their behalf, regarding the assessment and your involvement with them. You can upload correspondence and documents, record calls, texts and emails on the app but probably most importantly record interactions which you find unprofessional, uncomfortable, unreasonable, unfair, insulting etc. In fact anything which makes you think things are going wrong and you might have a problem. It’s much better to be prepared.
In addition if something which happens also adversely affects you in your daily activities then make sure you clearly record it and state what the impact is. You will see below that the Care Act imposes a general duty on local authorities to fully consider a person’s wellbeing when assessing and providing care and support services. If the actions of the Local Authority in the course of their involvement with you have an adverse impact on your wellbeing then this should be taken into account too. All these recordings combine to create a chronology of what’s happened that could be potentially important to support a complaint.
What happens at the assessment?
The assessment will be carried out by a care specialist on behalf of the local authority or NHS.
This could be an occupational therapist, a nurse or a social worker, or a combination of them to avoid having to undergo multiple assessments from different agencies. Together you will explore how difficult you find it to carry out activities in your everyday life, such as washing and dressing, food preparation and cooking, eating, managing your toilet needs or living safely in your home. These are known as care outcomes. Your recordings over time from our app will make it much easier for you to show what difficulties you have. The assessor needs to know how many care outcomes you are unable to achieve to work out whether you are eligible for support.
The Care Act 2014 imposes a general duty on Local Authorities to fully consider a person’s wellbeing when assessing and providing care and support services. Wellbeing is described in the guidance that accompanies the Care Act as relating to the following areas:
- Personal dignity
- Physical and mental health and emotional wellbeing
- Protection from abuse and neglect
- Control over day-to-day life
- Social and economic wellbeing
- Suitability of living accommodation
- The person’s contribution to society through work, training, education or volunteering
- Domestic, family and personal relationships
If your wellbeing is being affected by any of the difficulties you face in your daily living activities you should say how in the text box on the app, relating to the particular event.
It’s a good idea to take a friend, family member or ideally your helper who knows your difficulties first hand with you to the assessment so that they can help you explain how your condition affects you and to help explain the app and what’s been recorded. If there isn’t anyone who could go with you and if you would find it very difficult to understand the assessment or to explain your needs, the Local Authority must arrange an independent advocate to help you at the assessment. Ask to meet the advocate before the assessment so they understand the evidence you’ve collected on the app and make sure it’s all discussed.
What happens after the assessment?
Once your care needs assessment has been completed, your Local Authority will decide what care services it can provide or arrange for you, or that you can organize for yourself if the Local Authority gives you a direct payment to cover it. Their decision is made by comparing your care needs with a set of nationally agreed criteria which all Local Authorities must use. The assessor must also take into account how these needs affect your general well-being when they decide if you need support.
You will qualify for care and support if:
- You have a mental or physical need or you are suffering from an illness
- You are unable to achieve two or more of the care outcomes – these are things like whether you need help to prepare and consume food and drink, or to get washed and dressed
- There is a significant impact on your wellbeing because you’re not getting the help you need
You can find out about the eligibility criteria on your Local Authority’s website. Your Local Authority is only responsible for your personal care needs. Health care needs are the responsibility of the NHS.
Detailed information about the care services you need will be included in your care plan, which will be written in a document and a copy given to you. Keep that safe to refer to and to have if you need advice about it.
Care services can include:
- Residential care or nursing homes.
- Disability equipment and adaptations to your home.
- Home care help with things like cleaning and shopping.
- Day care for your child if either you or they have a disability.
- Day centres to give you or the person who cares for you a break.
Reviewing your care and support plan
Once your care and support plan has been agreed you have a right to ask for a review at any time if you think your care and wellbeing needs or your financial situation have changed.
Even if nothing has changed, the local authority must review it regularly anyway, usually once a year.
How to resolve problems and complain about social care
The health and social care complaints systems are based on the Local Authority Social Services and National Health Services Complaints (England) Regulations 2009 (‘the complaints regulations’), made under powers in sections 113 to 115 of the Health and Social Care (Community Health and Standards) Act 2003.
Glossary of terms
- The terms ‘community care’, ‘social services’ and ‘social care’ can be used interchangeably to describe the broad range of services provided by Local Authority social services departments, for example home care services or care home provision.
- ‘Local Authority’ is used here to describe all these service areas.
- The body responsible for responding to a complaint is called the ‘responsible body’ in the complaints regulations. This can be the Local Authority or another body such as the local Clinical Commissioning Group if the health service needs to take the lead.
Never forget your Local Authority is there to serve you. You have the right to complain if it does not treat you in a professional and caring way. As a public body, they must adhere to laws and standards when working with you, for example they must protect your human rights and make sure you are not discriminated against.
Most problems that arise should be able to be dealt with informally through conversations, e-mails, letters or meetings. However, you may feel it necessary to make a formal complaint if you cannot resolve a particular issue. Your complaint should be valued by your Local Authority and seen as a way to potentially improve service provision.
Your Local Authority must have a complaints procedure and be able to provide you with a copy of it on request. It should publicise the procedure on its website and it should be easily available in various formats and through a range of channels reflecting the needs of the local population. For example, it may be printed in different languages. If your care is provided by an independent agency on behalf of your Local Authority, you can still complain to the Local Authority because they remain responsible for ensuring you receive appropriate care and support.
The Local Government and Social Care Ombudsman (LGO) service exists to deal with complaints that cannot be resolved to your satisfaction by your Local Authority. They look at how it has acted regarding your case. They also act as a complaints service if you privately arrange and fund your own care and support and have not sought Local Authority assistance. Judicial review is a lesser used but powerful legal option.
The Local Authority complaints procedure
The main routes to resolving problems with your local authority are:
- Try to resolve the problem by negotiating and/or asking the Local Authority to review a decision you disagree with.
- If that fails you can make a formal complaint using the Local Authority complaints procedure.
- If you are still not satisfied with the outcome you can complain to the Local Government and Social Care Ombudsman or consider a legal challenge by way of judicial review.
Once it receives your complaint, your Local Authority must respond to you based on its complaints procedure. It can design its own scheme, but it must meet the requirements of the complaints regulations.
What can you complain about?
A complaint has been described as being an expression of dissatisfaction or disquiet about the actions, decisions or apparent failings of a Local Authority’s adult social services provision which requires a response. You have a right to complain about any aspect of a service being provided by your Local Authority apart from in a few circumstances. The following are examples of situations that might lead to a complaint if they cannot be resolved:
- You have been told you are ineligible for a service but you disagree
- You have been inappropriately refused an assessment of your needs
- There have been excessive delays in dealing with your case, for example a home adaptation
- The services arranged for you are not satisfactory or adequate
- The personal budget allocated to pay for your care is insufficient to meet your eligible needs
- Your assessment has not considered all of your needs
- Your local authority has not followed relevant legislation or regulations
- You have not been properly informed of your rights and options
- You have not been told about services such as advocacy or reablement
- Your potential right to NHS continuing health care has not been explained to you
- The charging procedures have not been properly administered
- You have not been informed about funding options such as deferred payments
- You have been wrongly asked to pay a top-up fee for a service
- Your service has been cut at a review due to funding pressures
- You have been treated in a discriminatory way,
- Your human rights or dignity has not been respected or
- You have received poor quality services.
Limitations on what you can complain about
The complaints regulations state your Local Authority does not have to deal with:
- Complaints that are resolved to the complainant’s satisfaction by the next working day
- Complaints that were resolved or investigated under previous complaints regulations
- Complaints that relate to the Freedom of Information Act 2002, which are dealt with by the Information Commissioner’s Office.
How to make a complaint
A complaint to a Local Authority can be made verbally, in writing or electronically, for example by e-mail. The complaints regulations state your Local Authority must make a written record of a verbal complaint and provide you with a copy. It is advisable to make a formal complaint in writing or electronically, if possible, so you can be sure that it covers everything you want to say. Set out clearly the points you want to make. For example, using the app, you could provide a time-line showing how things developed through various stages. It may be useful to include something about the effect of the issue on you. For example, if you complain about the Local Authority reviewing your case and reducing your services, explain the practical difficulties you face, the emotional and/or financial impact; or you could include expert opinion for example from a medical practitioner.
Your Local Authority should ask you what outcomes you would like to achieve from your complaint, so you should think about this prior to starting the complaints process.
Who can make a complaint?
If you are the service user, you can make the complaint. That is, if you are the person who receives the care and support from the Local Authority. You can complain if you are not the service user but you are affected, or likely to be affected, by an action or decision of the service user’s Local Authority for example if you are a carer or partner of the service user. A complaint can be made by your representative if you like. There are advocacy support rights under the Care Act 2014.
If you lack mental capacity, someone acting under the Mental Capacity Act 2005 can complain on your behalf, for example if they have a lasting power of attorney.
What to expect when you make a complaint
The complaints regulations are designed to promote a person-centred approach, meaning the response to your complaint should be tailored to your specific needs and wishes and the outcomes you want to achieve. This should see a flexible, prompt, response aimed at resolving your issue and dealing with your concerns.
You should be treated with respect and courtesy and should receive any necessary advice or assistance to understand and make use of the complaints procedure. You should be informed of the outcome of the investigation of your complaint and your Local Authority should ensure they take appropriate action, if necessary, in the light of the findings.
The complaints department
Your Local Authority will have a complaints department, which will deal with your complaint. When the complaint is received, it is sent to a manager in the department and then allocated to a worker for a response. The person who investigates your complaint may be employed by your Local Authority or may be an independent investigator. They must not be involved in any of the matters complained about. Your Local Authority is called the ‘responsible body’ in the complaints regulations.
Local Authority duties when a complaint is made
Your complaint must be acknowledged by your Local Authority within three working days of its receipt. When a complaint is sent to a Local Authority but it seems that another body such as the Clinical Commissioning Group should take the lead in responding to it, they must respond within three working days once they receive the actual complaint. This may result in a slightly longer response time. The acknowledgement to the complainant can be made verbally or in writing. Your Local Authority must offer to discuss with you, at a time to be agreed with you, the way in which the complaint should be handled, how long the investigation is likely to take and what response you should expect. If you do not want to meet to discuss the complaint, the Local Authority must still determine the response period and let you know in writing. This means you should be provided with an opportunity to explain what you hope to achieve from the complaint and receive a response as to what is realistically achievable by the Local Authority.
The investigation of the complaint
The complaints regulations require your Local Authority to investigate your complaint as speedily and efficiently as possible and to keep you informed about its progress. After completing the investigation, they should send you a response, in writing, signed by the responsible person, which includes:
- An explanation of how your complaint has been considered
- The conclusions reached including any action proposed
- Confirmation of whether they are satisfied any action needed has been taken or is proposed to be taken
- Details of your right to take your complaint to the Local Government and Social Care Ombudsman if you are not satisfied with the investigation outcome.
Your Local Authority must discuss their findings with you and what actions they think they should take to resolve the issue. They should seek your agreement about the planned actions before carrying them out. An example could be where poor practice has been identified leading to an inappropriate service provision decision to meet your needs after a needs assessment. As a result of your complaint, your Local Authority might apologise to you, promptly provide the appropriate service and reassure you that extra training has been put in place to ensure the workers involved are sufficiently skilled to carry out their professional duties in future.
Time limits for the complaint and response
Generally, you need to make a complaint within 12 months of the date of the subject of the complaint, or if later, the date on which the matter came to your notice. An exception may be made if you have good reason for not making the complaint within the time limit and it is still possible to investigate the complaint effectively and fairly. There is a maximum time limit of six months for the complaint response, beginning on the day on which it is received. A longer response time is allowed if this is agreed by all concerned. If the six month time limit is not met your Local Authority must send an explanation of the reason in writing and send the response as soon as possible. If your Local Authority delays the process without a good reason, the Local Government and Social Care Ombudsman may agree to investigate. They have complaint time limits.
Information, advice and advocacy duties
Your Local Authority is required to provide an information and advice service for all those with needs in its area under the Care Act 2014. This includes information on how to make a complaint or where to obtain assistance to do this. It requires your Local Authority to provide an independent advocacy service where needed to assist you to make a complaint. This is if you struggle to understand or engage with the complaints procedure to communicate your views and have no one to support or help you. This builds on a separate scheme that exists under the Mental Capacity Act 2005 for people who have significant mental impairment.
Co-operation and co-ordination duties
One of the reasons for linking health and social care in the complaints regulations is to create a joint-working duty where necessary because a complaint may relate to both organisations. This is mirrored by the cooperation duties in the Care Act 2014 requiring organisations to work together where necessary. Your Local Authority must co-operate with other responsible bodies (such as the Clinical Commissioning Group) in handling a complaint affecting both of them. They have a duty to co-ordinate handling the complaint response. The duty to co-operate includes a duty to agree which body takes the lead in handling your complaint and communicating with you. They must provide relevant information to the other body to assist in the consideration of the complaint. They must attend, or ensure they are represented at, any relevant meeting in connection with the consideration of the complaint. There may be a requirement for a co-ordinated response between your local authority, a body such as a care home and the Care Quality Commission (CQC). This may be where a complaint is about the care when a person was placed by the Local Authority. Care homes are service providers registered with and monitored by the CQC. Your consent is required for the provision of information between the bodies. These duties also link with cooperation duties in the Care Act 2014 regarding safeguarding.
The Local Government and Social Care Ombudsman
If a complaint is not resolved to your satisfaction by the Local Authority complaints procedure, you may want to take it further. The most common way to do this is to complain to the Local Government and Social Care Ombudsman (LGO). Ombudsman services oversee how public bodies, such as Local Authorities, meet their legal duties and ensure accountability. For example, there is also a Parliamentary and Health Service Ombudsman.
How and when to make the complaint to the Ombudsman
The general time limit for making a complaint is 12 months. The time starts to run from the date the issue you are complaining about took place or the date that you first became aware of it. One reason for the rule is because the longer the delay, the harder it is to gather evidence. The LGO may investigate your complaint about events that occurred more than 12 months ago, but only if there is a good reason for the delay, which is not your fault. For example, you may have been prevented from complaining due to ill health, an inability to read or write English, or a mistaken belief that action had already been taken to resolve the issue. The LGO can take into account the seriousness of the alleged adverse effect in deciding whether to investigate such a complaint.
Your complaint should set out both the issue you are complaining about and the injustice you have suffered. Friends, relatives and voluntary sector advisors can complain on your behalf, with your permission. You can use a solicitor, but it is very unlikely you will get the costs back, even if the LGO upholds your complaint. This is because it is not necessary to go through a solicitor to make a complaint. If you lack mental capacity, someone empowered to act on your behalf can make the complaint.
Keep your complaint as concise and clear as possible. If it has a long history, then our app is particularly designed to help you because it produces a chronology of the events you’ve recorded, your commentaries about communications you’ve had with the organisation you’re complaining about, supporting evidence, and your ratings of each event for seriousness from your perspective. All this will help the LGO investigator to understand what has happened. Provide copies of important relevant documents by uploading them on the app as you receive them, for instance the complaint you made to the local authority and their response.
The LGO expects you to have made a complaint to your local authority first, so they have had a chance to put things right, so your continuous recording of how matters have been handled by the Local Authority will be very helpful. However, if there is an unreasonable delay in dealing with your complaint, or you have good reason for losing faith in the Local Authority’s ability or willingness to deal with your complaint, they may agree to investigate your complaint even though you have not completed the Local Authority procedure.
How the LGO deals with complaints
The LGO generally cannot investigate your complaint until your Local Authority has been given the opportunity to resolve it first through its own complaints procedure. They cannot investigate a complaint if you are taking other legal proceedings relating to the issue. Because complaints can be dealt with in many different ways, it is hard to predict how long it will take. Generally, according to the LGO website, complaints are resolved within 3 months to a year, depending on the complexity. The LGO decides whether to carry out an investigation. If they agree the complaint is one that is within their remit, they allocate an investigator who contacts you. The investigator also contacts your Local Authority to consider their views on the issue. The LGO decides whether or not to take on your case based on the presenting facts and circumstances. Their focus is on whether your Local Authority acted legally, reasonably and fairly towards you and whether you experienced any injustice as a result. It may find there has been maladministration. The LGO will not investigate a decision simply because you disagree with it. You must show there has been maladministration in the way that the local authority has acted or failed to act, leading to injustice
What is maladministration?
Maladministration involves failings in the way an action or decision has been taken by your Local Authority, or where it has not taken action when it ought to have done. It is a broad term and can relate to issues such as:
- Unjustified delay
- Unfair discrimination
- Failure to abide by agreed procedures
- Failure to have proper procedures in place
- Failure to carry out legal duties
- Treatment that does not respect dignity and human rights.
This is not a complete list. You can find more useful examples on the LGO website.
What level of injustice is required?
The LGO only investigate maladministration leading to injustice. You have to show the maladministration by the Local Authority has had a negative impact on you. This might be financial, psychological or practical in terms of your ability to lead the life you want to lead. It could relate to the trouble and distress you experienced in pursuing your complaint. Whatever it is, it must be caused by the local authority’s maladministration. It is useful to include any evidence you have to show the injustice you have experienced. For example, if you have paid for services the local authority should have provided for you free, include copies of the bills with your complaint.
Types of decision
The LGO investigation leads to one of the following types of outcome.
- Fault: This means the complaint against the Local Authority is upheld by the LGO. It meets the maladministration leading to injustice.
- No fault: The decision might be there has been no fault by the Local Authority. For example, it may be found the Local Authority has followed the correct procedure in reaching a decision even though you disagree with it.
- Insufficient injustice: The decision might be that even if the Local Authority is at fault, the effect on you is not serious enough to justify continuing to investigate the complaint.
- Local settlement: If it is found that the Local Authority has done something wrong that has caused problems for you, the LGO often try to resolve complaints without the need for a full investigation and report. Instead the investigator tries to agree with the Local Authority the steps needed to put things right. If these can be agreed in principle, they take your views about settlement into account, but usually stop the investigation once a local settlement has been reached. This can happen at any stage of the investigation.
Most decisions are made by letter, but sometimes the LGO needs to write a formal report about a complaint if it is against a Local Authority.
This could happen, for example, if the Local Authority does not agree to the suggested settlement or if the LGO thinks the issue is of particular interest to the public. If so, they send you and the Local Authority a draft report setting out the main facts and asking for suggested changes or comments. Unless there are special reasons, the report is made available to the public and includes the LGO’s recommendations to put the injustice right. They do not publish your name. If a Local Authority does not follow the recommendations set out in the report, the LGO may produce a second report dealing with the non-compliance, but this is rare. Many cases are dealt with without the need for a full investigation or the publication of a report.
What powers does the LGO have?
The LGO can insist on seeing information held by your Local Authority to help its investigation.
They can make recommendations about what your Local Authority should do to put things right. This can include:
- A written apology to you
- Reviewing policies to make changes in line with LGO recommendations
- Payment of compensation to you for injustice suffered.
Although the LGO cannot order Local Authorities to follow its recommendations, most authorities do comply.
Self-funders’ right to complain to the LGO
If you arrange and fund your own care and support without support from a Local Authority, the LGO acts as a complaints service for you. This is because you would not have access to a Local Authority complaints service. This could, for example, be related to care in a care home or home care services in your own home. Each service provider of this type must be registered with the Care Quality Commission and work within its Fundamental Standards. One of the Standards’ requirements is that each service provider must operate their own, easily accessible, complaints procedure. It is usually advisable to try to resolve your issue via this mechanism before complaining to the LGO.
The Local Government Monitoring Officer
Your Local Authority must appoint a monitoring officer under the Local Government Act 1989. Often, the chief executive or head of legal services fulfils this role. They have a duty to report any new proposals or decisions which are, or could be, in contravention of existing law and therefore unlawful; or could be a matter of maladministration or injustice in a Local Government and Social Care Ombudsman investigation. In preparing the report, the monitoring officer must consult, as far as possible, the Local Authority chief executive (except where the chief executive is also the monitoring officer) and the chief finance officer. Once prepared, the report must be sent to all the Local Authority members (elected councilors) who have responsibility for the decision or proposal. For social care matters, this includes all the councilors who sit on the Social Services Committee. Once the monitoring officer has reported, Local Authority members must call a meeting to consider the report within 21 days. In the meantime, before the monitoring officer’s report has been considered by members, the Local Authority must not proceed with the proposal or decision in question.
If you think a decision or proposal by your Local Authority is, or could be, unlawful, or a matter of maladministration or injustice, you can contact the monitoring officer and ask them to set out their view. It is not necessary to use a solicitor to do this, although some people find it helpful. The Local Authority legal department or unit should be able to tell you how to contact the monitoring officer.
Parliament gives public bodies, such as Local Authorities, legal duties and discretionary powers (i.e they have a choice about how they use their powers) to carry out their functions. They must fulfill those legal duties and must consider the exercise of their discretionary powers. If they fail to do so, they are said to be acting unlawfully and may be challenged by Judicial Review. If you are unhappy with the way your Local Authority has dealt with your case and your complaint has not resolved the problem, one option is to consider making an application to the High Court for a Judicial Review.
Common grounds for Judicial Review are:
- Inadequate consultation
- Failure to act under statutory guidance, or to take account of non-statutory guidance
- Breach of the Public Sector Equality Duty under under section 149 of the Equality Act 2010
You cannot complain to the Local Government and Social Care Ombudsman and also go to Judicial Review, so it is important to decide which is the best option for your situation.
There is a strict 3-month time limit for bringing a Judicial Review. The time runs from the decision, act or omission complained about until the date the application is lodged in court. Judicial Review is not free. It is a potentially expensive process and may be unrealistic unless you are eligible for Legal Aid and your case has sufficient merit to meet the merits test for funding. You need advice from a legal expert such as a solicitor with appropriate expertise and experience before applying for a Judicial Review.
What is Judicial Review?
The High Court reviews a decision, act or omission by a public body, such as your Local Authority, to decide whether it has behaved unlawfully. The Court does not consider the merits of the decision, only whether it has been reached lawfully. If not, the Court can make a range of Orders, with the most common being a ‘quashing order’. This means the Court overturns the decision made and the public body has to look at the case again and make a fresh and lawful decision. For example, a successful challenge to a decision that you do not meet the eligibility criteria for care support, made on the basis that the assessment process was unlawful as it did not take all relevant factors into account can result in a quashing order. The Local Authority would have to make a fresh eligibility decision after a lawful re-assessment. There is provision for injunctions and other emergency procedures where needed.
The stages of Judicial Review:
- A ‘letter before action’ is sent to the public body. This sets out the relevant facts, why it is said that the public body has acted unlawfully and what needs to happen to put things right. This is usually written by a specialist solicitor.
- If the public body does not agree to resolve the problem, an application for Judicial Review is made. This is done with documents setting out the facts and legal arguments.
- A judge reads the documents and decides whether to grant permission for the case to go ahead. This does not usually involve any court hearing. (There is a right of appeal if permission is refused).
- If a judge grants permission, the public body has the chance to produce a written defence and the applicant must respond. A court date is set for the final hearing.
- After the court hearing the judge issues a written judgment setting out reasons for the court’s decision.
- At any stage, the public body can settle the case and/or the applicant can withdraw it, subject to consideration of who should pay any costs.
In practice, many Judicial Review cases do not proceed, because the public body settles on receipt of the letter before action. Where a case does go to a court hearing, the evidence is usually all in writing. If you make a Judicial Review application, you are extremely unlikely to be expected to attend the court and give evidence. The judge reads the documents, listens to the arguments put forward by your barrister and by the barrister appointed by the public authority, and makes a decision.
What are the grounds for Judicial Review?
There are three basic grounds for Judicial Review:
- Irrationality and
- Procedural unfairness.
Illegality: This can be a failure to carry out a statutory (legal) duty (for example, an assessment) or a breach of a human right (for example, not considering your right to family life). It is unlawful to carry out a function like an assessment without taking into account all relevant factors (for example not considering issues such as social isolation and psychological distress, but only focusing on personal care needs). Other aspects of illegal decision-making include not following binding guidance, for example, not applying eligibility criteria set out in statutory guidance; or operating a blanket policy and not considering each case on its own merits, for example never providing care at home if it would be more expensive than a care home placement.
Irrationality (Unreasonableness): This can be difficult to show in practice. A decision would have to be very perverse before a court treats it as unreasonable. A local charging policy that acted as a disincentive to claim disability benefits might be described as irrational.
Procedural unfairness: You are generally entitled to be given reasons for decisions that have a significant effect on your life, for example it would be unlawful to reduce a care service without providing you with a reason. Where a public body makes a decision affecting you or your carers, for example changing eligibility criteria or introducing charging for carers services for the first time, they usually have to carry out a consultation. In R v Brent London Borough Council, ex p Gunning (1985) 84 LGR 168, a lawful consultation was held to require: consultation at a formative stage of a new proposal; sufficient reasons given to allow proper consideration and responses; adequate response time given; responses to be genuinely taken into account when finalising the proposal.
Judicial Review is a specialised area of the law. If you are considering Judicial Review proceedings, it is important to act quickly and to make sure you consult a solicitor with the relevant expertise and experience. You must ensure you take advice about the potential costs which can be a lot.
Other avenues of complaint and protection
- Your MP or local councilor: It may be helpful to seek support from your local councilor or MP in dealing with a problem or where you feel that the formal complaints process hasn’t dealt appropriately with your issue.
- Safeguarding: Safeguarding issues may be one part of a complaint to the Local Authority. They may be identified following notification of concerns to the Care Quality Commission. This may lead to a Local Authority safeguarding procedure starting and possibly contact with the police. These bodies must cooperate, act promptly, and share relevant information in an appropriate manner, with lawful consents provided by those concerned.
- Mental Capacity Act 2005 standards and rights: If a complaint relates to lacking the mental capacity to express views, wishes and feelings, all those concerned must work to the ‘best interest’ standards in the Mental Capacity Act 2005 and Code of Practice.
- Care Quality Commission: The Care Quality Commission (CQC) is the body responsible for regulating, monitoring and maintaining standards in health and adult social care in England. A care home or home care agency providing your service must be registered with the CQC and meet a range of standards, known as the Fundamental Standards. These are based on the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Regulation 16 requires all registered service providers to have easily accessible and effective complaints procedures. The explanatory CQC guidance states that ‘people’s care and treatment must not be affected if they make a complaint, or if somebody complains on their behalf’.
The Fundamental Standards
Fundamental Standards include:
- A requirement that your care must be appropriate and reflect your needs and preferences and you must be treated with dignity and respect, among other elements.
- People employed to care for you must be of good character, have the necessary qualifications, skills and experience and be able to perform the work for which they are employed (fit and proper persons requirement).
- Registered service providers must be open and transparent with service users about their care and treatment (the duty of candour).
The inspection regime and ratings system
The CQC applies a four-tier rating system for each service provider, for example care homes. This rates services as: outstanding, good, requires improvement or inadequate. A team of specialist local inspectors monitor services against five key questions. They ask if the service is:
safe, caring, effective, responsive to a person’s needs, and well-led before giving a rating. You can view the detailed inspection reports on the CQC website.
Register a concern
If you are not satisfied with any aspect of the service you receive from a CQC registered body, you can inform the CQC. The CQC must decide the level and type of response to take. They have a wide range of powers to investigate and enforce changes on the service provider and to carry out subsequent related reviews. This includes reporting poor standards of care in a care home. This action can be made in conjunction with informal discussions with the managers of the service provider or while making a formal complaint to your Local Authority if they are involved with the provision of the service.
If you feel it is not in your interests to liaise directly with the management of the organisation, you can contact the CQC and make a complaint to the Local Authority.
The CQC does not have a duty to respond to you individually in the same way as a Local Authority complaint. When you register a concern, this adds to the local inspector’s knowledge of the services they are responsible for.
In certain circumstances the CQC has a duty to act urgently, for example where the information it receives leads it to believe that there is a risk to individuals or where criminal activity has taken place. CQC actions may include liaising with your Local Authority or the police, and involvement in local safeguarding and complaints procedures.
The Health and Social Care Act 2008 provides that a private or voluntary sector run care home contracted by a local authority to provide accommodation is subject to the Human Rights Act 1998.
The Care Act 2014 Section 73 extends the Human Rights Act 1998 protections to people whose care is carried out in their own home and is arranged or funded by a local authority, for example by domiciliary care providers. This applies throughout the UK and including services funded through direct payments. This applies to all care providers regulated by the Care Quality Commission and its equivalents elsewhere in the UK who are carrying out a ‘public function’. These protections do not extend to buying completely private care provision where the State is not involved in the arrangement in any way.
The Care Quality Commission assesses its health and social care registered service providers under various standards including how they uphold human rights and equalities.
Your Local Authority must not act in a way that is incompatible with human rights law. Each Local Authority worker must take a human rights-based approach when working with you The Human Rights Act 1998 sets out a number of basic human rights that cover issues such as a right to life, a right to privacy, and rights to family life. Most of these rights are qualified and not absolute. This means some rights can be interfered with in certain circumstances set out in the Article itself. Any such interference must be legal, necessary and proportionate to your individual circumstances. It is useful to be aware how these rights may relate to issues such as: poor treatment by your home carer; whether you can be supported to stay at home or need to be moved to as care home; and being placed in a care home a long way from other social support.
If you are making a complaint to a Local Authority or to the LGO, it can be useful to show you are aware of human rights laws and principles in terms of your Local Authority’s duties and, if appropriate, relate your situation to one or more of the Articles in the Act.
Commonly used articles in the Act include:
- Article 2 – the right to life
- Article 3 – the prohibition on inhuman and degrading treatment
- Article 5 – the right to liberty
- Article 8 – the right to respect for private, family and home life
- Article 14 – prohibition on discrimination (in relation to the enjoyment of other Convention rights).
Equality and discrimination
The Equality Act 2010 prohibits discrimination relating to certain ‘protected characteristics’ that people may have. What is discrimination?
The Equality and Human Rights Commission describes discrimination as:
- Treating one person worse than another because of a protected characteristic (known as direct discrimination) or
- Putting in place a rule or policy or way of doing things that has a worse impact on someone with a protected characteristic than someone without one, when this cannot be objectively justified (known as indirect discrimination)
The protected characteristics under the 2010 Act are:
- gender reassignment,
- marriage and civil partnership,
- pregnancy and maternity,
- religion or belief,
- sexual orientation.
Two that sometimes relate to older people in social care are age and disability.
Disability and ‘reasonable adjustments’
The 2010 Act says that service providers, such as care homes, must take reasonable steps to remove any barriers you might face to accessing their services because of your disability. This could relate to policies or practices or the physical environment if this causes a barrier to access. You may need particular adaptations or equipment to help you or additional services such as extra staff assistance. There may be a requirement for an auxiliary aid and services, for example: a portable induction loop with hearing aids, a British Sign Language interpreter or provision of information in an alternative format, such as Braille or audio CD’s. These standards should apply to all Local Authority and health service procedures. Whether an adjustment is reasonable depends on the size and resources of the organisation and type of service they provide. It also depends on what changes or adjustments are needed and how practicable or easy it is to do them. Whether something is reasonable or not is decided in court cases brought under the 2010 Act.
The Public Sector Equality Duty requires all public bodies, such as local authorities, to have due regard to the need to: eliminate discrimination, advance equality of opportunity and foster good relations between protected groups. This can relate to a policy that appears to apply to everyone in the same way, but, because you have one of the protected characteristics, it puts you at a particular disadvantage.
The Equality and Human Rights Commission has a range of general enforcement and investigation powers. They can provide assistance to individual litigants in legal proceedings concerning equalities legislation. See the Equality Advisory and Support Service website for more information.