Written evidence from Local Government and Social Care Ombudsman (HCS0069)
Dear Ms Harman,
Thank you for the opportunity to give evidence to your inquiry into Protecting Human Rights in Care Settings on 23rd March. I found the session very helpful and hope members did too.
There were a number of questions within the session regarding the LGSCO’s and the CQC’s areas of responsibility so I thought it might be helpful to follow up in a letter to the Committee.
The LGSCO is the statutory body responsible for the independent investigation of complaints about adult social care, whether it is self-funded or funded by the local authority. We take complaints from the users of these services, their relatives or representatives once a complaint has completed the local complaint process. We look into the circumstances of an individual complaint and make judgements on whether the person affected has suffered injustice as a result of the actions of the care provider or local authority. We then make recommendations for improvement.
These recommendations can be at an individual level and are designed to the put the person affected back into the situation they would have been in had they not suffered the injustice.
We also make recommendations for overall service improvement within a care provider or across a local authority area. As mentioned in the evidence session, although we don’t have formal enforcement powers, we have very high compliance with our recommendations from the bodies in our jurisdiction; our compliance rate is consistently over 99.5%.
We are not a regulator, but work closely with the CQC who fulfills that role in England. This means we cannot and do not inspect or approve adult social care services. This split between the responsibilities of a regulator and an Ombudsman service is common across different sectors in the UK and worldwide. Such a split ensures there is, both in appearance and reality, impartiality from an Ombudsman service.
We do however understand and recognise that there is confusion from the public about our role and that of the CQC, and the process for making complaints. We are committed to reducing this confusion. As discussed in the session we share information with the CQC on our complaints, provide training on sign posting, and have in place the ability to transfer a live call between our organisations.
However, we believe more could be done to increase awareness of and access to our service, which is why we have set out a number of proposals to this end in our 2021 Triennial Review.
The Triennial Review is our three-year review of the of the effectiveness of the complaints and accountability arrangements for local government and social care. It sets out the policy and procedural change that we think is needed to improve access to our service and the quality of local government and adult social care services within our jurisdiction. I have enclosed a copy for your information.
The Triennial Review 2021 contains recommendations that cover all aspects of our jurisdiction. I have included the recommendations relevant to adult social care below for information. Taken together we believe these recommendations would increase public awareness of and access to our service.
Our jurisdiction for adult social care only allows us to look at the actions of those providers directly registered with the CQC. This means there are whole sections of the care sector our jurisdiction does not cover. These include such services as day centres.
These services play a vital part in people’s lives, promoting independence and enabling people to live the life they choose. However, there is currently no independent route for complaints about the quality of these services. This creates an accountability gap in the market and disempowers the consumers of these services.
To resolve this, we are recommending that jurisdiction should be given to LGSCO to look at complaints about any setting in which adult social care is provided.
Currently adult social care providers are not required by law to signpost users to our service, although we are part of the statutory complaints process. For adult social care that is funded or arranged by local authorities, this is generally not a problem, as escalating complaints to our service is a key part of local authority work in other areas.
However, in the 10 years since gaining jurisdiction for privately funded social care, our complaints from users of these services have remained starkly lower than for council provided care. Most notably the share of complaints we receive from users of privately funded social care is not reflective of their overall share of the market. We believe this is in part due to a lack of signposting from these providers to our service.
As there are currently no legislative means to ensure compliance with the mandatory complaints process, this creates a disincentive for some providers to do so, as increased complaints create temporary reputational risk. This therefore allows some weaker businesses to undermine the market and disempower their consumers.
Mandatory signposting to our service would be a fundamental way to address this disparity. Mandatory signposting would enshrine in law what providers should already be doing, and increase awareness of our role amongst users of care services
Another way to improve access to the Ombudsman is to increase awareness of our role within the sector. We know from our dialogue with the sector, particularly smaller providers, there is often a lack of awareness of our service. Adult social care is a diverse market and there is no straightforward, low cost, way to reach all providers with information about the Ombudsman.
Increasing awareness could take the form of an outreach programme, backed by government, and aimed at harder-to-reach services, informing them of our role in the complaints system and the benefits we can bring. Increasing awareness would need to go together with any moves towards mandatory signposting.
As part of our role in improving public services, we seek to improve the quality of complaints handling in the bodies in our jurisdiction. We do this by providing training and resources such as guidance. Training is easily delivered to local authorities, as we have pre-existing strong links with this sector. However, since the adult social care sector has many smaller private providers, who often work in isolation, it can be harder to reach.
For this reason, many of these providers would benefit most from our training as they are not able to share information in the way councils do.
The LGSCO, if supported by government, could offer training in complaints handling to every social care provider, in the way we currently do for local authorities.
Service providers need to be accountable for the way they respond to people’s complaints. Strong local accountability requires strong local scrutiny. Complaints can provide a wealth of information to help inform the scrutiny process, whether through locally elected councillors or through independent board members of private providers. In every care business there should be a lead board member, partner, or director with responsibility for championing user complaints or concerns. Reviewing the lessons from complaints should be a standing item for boards and for local government scrutiny committees so that providers can be held to account for the service they provide and for the improvements they deliver in response to feedback.
As a minimum, all social care providers and commissioners should carry out an annual review of their complaints including a mandated data return. This would support the ownership of first tier complaints handling that is essential for achieving improvements. Putting complaints data at the heart of the suite of information that measures a provider’s performance would also help to ensure feedback from consumers drives service improvement.
A mandated data return from all social care providers about patterns of complaints, how they were dealt with and the outcomes, would shine a spotlight on local complaint handling. This could be a mandatory part of an annual review that is published on a council or provider’s website for everyone to access and use.
We know that many people in receipt of care lack the ability to complain. They may not have mental capacity, they may be isolated and alone, they may have no living relatives or friends to speak on their behalf, or they might be frightened to exercise their right to complain because they fear offending those who care for them. Despite that context, we do not have the ability to investigate proactively on behalf of care users, even where the evidence from our work suggests there might be problems. The law currently requires that a complaint must be brought to us by a person directly affected by the issue – something that is sadly not possible for many care users.
We do have the power in some circumstances to look more widely at the actions of a care provider, to consider whether others have suffered injustice, but this must still originate in an individual complaint we have considered. And when this happens, we often experience resistance from bodies in jurisdiction, who do not fully recognise the breadth of our role.
Giving LGSCO the power to investigate bodies within our jurisdiction based on evidence gained through our casework, without the need for a specific individual complaint, would mean we were able to use our evidence to its full potential to give a voice to the voiceless.
This power would clearly need to be used thoughtfully, sparingly, and proportionately. To achieve that, we would apply the same criteria of fault and injustice as we do for all our cases. We would only investigate where our evidence is compelling: telling us there are serious failings within a care provider or in a specific service.
Good complaints handling is one of the most direct and low-cost ways to improve care markets. Complaints not only allow service providers the opportunity to learn from mistakes, but also enable consumers to make decisions about their care. Empowered and confident consumers can in turn drive a more competitive market for care.
One straightforward way to improve complaints handling at the local level is to have in place a statutory ‘Complaints Standards Authority’, which sets the standards of complaints handling for all the bodies in its jurisdiction. Its role is to improve and standardise complaints handling by producing guidance, training, and standards. The Scottish Public Services Ombudsman and The Northern Ireland Public Services Ombudsman already have this power in their respective remits.
Becoming a ‘Complaints Standards Authority’ would enable LGSCO to clearly set the standards of complaints handling we expect from care providers in our jurisdiction. This would in turn help smaller care providers to understand and implement good practice in complaints handling and introduce a consistent level of service across the sector, empowering consumers and increasing accountability.
We are currently working with the relevant government departments and stakeholders in order to make these recommendations a reality. I would welcome the chance to talk with you or answer any questions you might have about our Triennial Review or jurisdiction.
Yours sincerely,
Michael King
Local Government and Social Care Ombudsman for England Chair, Commission for Local Administration in England
4/04/2022